Ireland and the Convention on the Elimination of Racial Discrimination Submission to the United Nations Committee on the Elimination of Racial Discrimination on Ireland’s Combined 5th to 9th Report October 2019 First published in October 2019 by the Irish Human Rights and Equality Commission 16-22 Green St, Dublin 7, D07 CR20.

Copyright © Irish Human Rights and Equality Commission 2019

The Irish Human Rights and Equality Commission was established under statute on 1 November 2014 to protect and promote human rights, equality and intercultural understanding, to promote understanding and awareness of the importance of human rights and equality, and to work towards the elimination of human rights abuses and discrimination.

ISBN 978-0-9957296-8-1 Contents

Introduction by the Chief Commissioner 1 Key Recommendations 5 National Machinery for the Promotion of Race Equality (Articles 2, 20.3) 13 Gaps in the ratification of international human rights standards 14 Domestic incorporation of and reservations to CERD 14 Monitoring mechanisms for international human rights standards 15 Public Sector Equality and Human Rights Duty 16 National legislative frameworks 17 National policy frameworks 19 The collection and publication of disaggregated data 22 Support for civil society organisations 23 Legal Framework on Citizenship and Nationality (Articles 2(1), 5(d)(iii)) 25 The legal framework on citizenship 26 Citizenship by naturalisation 27 Revocation of certificates of naturalisation 30 Stateless people 31 Experiences of Racial Discrimination and Attitudes to Diversity 33 (Articles 2, 5, 7) Discrimination and prejudice on the grounds of race 34 Discrimination and prejudice against the Traveller and Roma communities 36 International Decade for People of African Descent 37 Islamophobia and anti-Semitism 38 Hate Speech and Hate Crime (Articles 2, 4, 5, 7) 39 Legal framework on incitement to hatred and hate motivation 40 The Prohibition of Incitement to Hatred Act 1989 40 Hate motivation in the criminal law 41 Current status of review and reform initiatives 43 Monitoring and recording of hate crime and hate-related incidents 44 Police recording of crime and non-crime incidents 44 Alternative reporting mechanisms 46 Policy and regulatory responses to racism online, in print, and broadcast 47 Hate speech online 47 Social media standards and takedown procedures 48 Press and broadcast 49

IHREC CERD Submission | October 2019 i Participation in Public Life and Representation in Decision-Making 52 (Article 1) Political participation 53 Standards in public office and political discourse 55 Education (Articles 5(d)(vii), 5(e)(v), 7) 59 Primary and secondary education 60 Access to and participation in education 60 Diversity in education 65 Further and third-level education and training 67 Employment and Economic and Social Life (Articles 5(e)(i), 5(e)(iv)) 70 Labour market discrimination 71 Structural barriers to accessing the labour market 73 Access to the labour market for asylum seekers 74 Accessing decent work 77 Economic protection 78 Habitual residence condition 79 Protection of social and cultural life 79 Health and Social Services (Articles 5(e)(iv)) 82 Access to healthcare services and health outcomes 83 Mental health 87 Social services for children and families 90 Housing (Articles 5(d)(v), 5(e)(iii)) 93 Housing policy 94 Discrimination and inequality in housing 96 Traveller accommodation 98 Roma 100 Gender-based Violence (Articles 2(2), 4(a), 5(b)) 102 Violence against women and girls 103 Female genital mutilation 107 International Protection (Articles 2, 5) 109 The international protection application process 110 Immigration detention 112 Developments in direct provision since 2011 112 Special reception needs 115 Impact of the policy of dispersal on the rights of asylum seekers and refugees 117 The provision of accommodation by private non-State actors 119 Family reunification 121 Unaccompanied and separated children 123

ii IHREC CERD Submission | October 2019 Human Trafficking (Articles 2, 5(b)) 126 Investigations and prosecutions 127 Victim identification and assistance 128 Access to compensation 131 Data collection and monitoring 132 Accommodation of victims of trafficking in direct provision centres 133 Access to Justice (Articles 2, 5(a), 7) 134 Policing reform 135 The experiences of minority ethnic groups within the criminal justice system 135 Cultural competency 138 Diversity within the criminal justice system 139 Criminalisation of prostitution 140 Access to legal aid, advice, and assistance 141 Interpreting services 142 Multiparty litigation 142 Practice Direction 81 143 Human Rights Leadership (Article 7) 145 Promotion of women’s rights 146 Rescue and humanitarian missions 146 Business and human rights 147 The fishing industry and Atypical Working Scheme 148 State purchasing of Colombian coal 149 Appendix: List of Recommendations 151

IHREC CERD Submission | October 2019 iii Glossary

BAI Broadcasting Authority of Ireland

Committee on the Elimination of Discrimination CEDAW against Women

United Nations Convention on the Elimination of CERD All Forms of Racial Discrimination

Commission Irish Human Rights and Equality Commission

Committee Committee on the Elimination of Racial Discrimination

CSO Central Statistics Office

ECRI European Commission against Racism and Intolerance

EEA European Economic Area

EROC Emergency Reception and Orientation Centre

ESB Electricity Supply Board

ESRI Economic and Social Research Institute

EU European Union

FGM Female Genital Mutilation

GP General practitioner

Council of Europe Group of Experts on Action GRETA against Trafficking in Human Beings

iv IHREC CERD Submission | October 2019 HAP Housing Assistance Payment

HRC Habitual Residence Condition

HSE Health Service Executive

IFPA Irish Family Planning Association

INIS Irish Naturalisation and Immigration Service

IPAT International Protection Appeals Tribunal

IPO International Protection Office

MRCI Migrant Rights Centre Ireland

NHRI National Human Rights Institution

OCO Ombudsman for Children’s Office

PD81 Practice Direction 81

PPS Personal Public Service number

PULSE ‘Police Using Leading Systems Effectively’ system

UN United Nations

UNHCR UN High Commissioner for Refugees

WRC Workplace Relations Commission

IHREC CERD Submission | October 2019 v Section 1 Introduction by the Chief Commissioner I am pleased, on behalf of parents and grandparents of different nationalities. Although there is no official the Irish Human Rights and data available, it is also estimated that Equality Commission (the there are between 20,000 and 26,000 Commission), to provide undocumented people in Ireland. our independent report of There have been several significant developments since 2011. These include the Ireland’s compliance with completion of the 2016 Census of Ireland, the UN Convention on the a measure of economic recovery following the recession, as well as the emergence Elimination of All Forms of new human rights challenges, such as of Racial Discrimination an unprecedented housing shortage and homelessness crisis. Several areas identified (CERD), in advance of by the Committee in its 2011 Concluding Ireland’s examination Observations have not seen sufficient progress in the intervening period. In in December 2019. particular, the Commission is concerned with the lack of progress on review and reform of Ireland’s legal framework on The Commission exercises a dual capacity hate crime, the continuing and widespread as the ‘A’ status National Human Rights institutional discrimination faced by Institution (NHRI) and the national equality Travellers, and the incompatibility of Ireland’s body for Ireland, provided for in primary international protection framework with its legislation by the Irish Human Rights and international human rights obligations. Equality Commission Act 2014. In addition to the mandate consistent with any national human rights institution, the Commission has specific statutory functions to ‘encourage ʽMuch has changed since the development of a culture of respect for human rights and equality, and intercultural its last examination under understanding in the State’, including by CERD in 2011, with Ireland encouraging ‘good practice in intercultural continuing its transformation relations’ and to ‘promote tolerance and acceptance of diversity’ in the State. into a diverse multiethnic and multinational society. Much has changed since its last examination under CERD in 2011, with Ireland continuing its transformation into a diverse multiethnic In addition to these ongoing challenges, and multinational society. In 2016, there Ireland’s 2019 examination under CERD were 535,475 people whose nationality was takes place in a period of our global history other than Irish (11.6% of the population) where our society and democracies originating from 200 different countries, are increasingly threatened by the and a significant number of migrants ‘snarl of belligerence and the smirk of have become Irish citizens. A growing dehumanisation.’ We have witnessed in the population of young Irish people have past few years a worrying trend that has

IHREC CERD Submission | October 2019 2 seen many countries in Europe and further of activities. Alongside this, we have also afield succumb to populism, unilateralism, placed particular priority on promoting racism, and an increasingly narrow and access to justice; socio-economic rights inward-looking vision of statehood, and the social protection of all families and sovereignty, and national belonging. individuals, including in the areas of housing, health, and decent work; and disability.

The focus and structure of this submission ʽEmerging developments reflect these strategic priorities and how they underscore the need for intersect, aligning them with the areas of competence and interest of the Committee. leadership across the State to ensure Ireland maintains its Building on the information provided to the commitment to equality and Committee in our submission on the List of Themes in August 2019, the Commission non-discrimination and does adopted a participatory and intersectional not succumb to the regression approach to developing this submission, and in international human the views, insights, and experiences gathered are reflected throughout the sections rights norms we have been below. Representatives from our legal and witnessing in recent years. policy and research teams have conducted outreach work with newly arrived asylum seekers who are being accommodated in Sadly, we have a demonstrable history of emergency accommodation, in order to chronic racism toward Travellers, a minority hear about their experiences and promote ethnic community that is indigenous to awareness of the Commission. In March Ireland. More recently, the acute overt 2019, the Commission conducted a Be nature of racism, like many countries Heard on CERD consultation with a diverse regionally and globally, is underpinned group of young people, ranging in age from by economic inequalities. In the context 16 to 24, to hear their experiences of racial of a housing crisis, for instance, we have discrimination and their views of how Ireland witnessed the growth of a troubling anti- can better meet its obligations under CERD. immigrant and anti-refugee discourse. The perspectives and insights garnered These emerging developments underscore during this consultation are referred to the need for leadership across the State to throughout this submission. In May 2019, ensure Ireland maintains its commitment the Commission also held a national Civil to equality and non-discrimination and Society Forum, which involved consultation does not succumb to the regression in on the views of civil society organisations international human rights norms we on the issues that should be raised in our have been witnessing in recent years. engagement with the reporting process. In addition to our participatory and consultation In recognition of this, in its Strategy work, this submission has been informed by Statement 2019–2021, the Commission the Commission’s day-to-day interaction has identified ‘combatting racism and with rights-holders and civil society promoting intercultural understanding’ as organisations as part of its ongoing work a key strategic priority in its programme

3 IHREC CERD Submission | October 2019 programme, including through its provision of legal assistance, amicus submissions, the Your Rights information service, and the Human Rights and Equality Grant Scheme, as well as by our programme of research with the Economic and Social Research Institute (ESRI), which has made significant findings about experiences of racial discrimination and attitudes to diversity.

I would particularly like to acknowledge the work of Irish civil society in combatting racism in Ireland, and the wealth of invaluable expertise and insight that they will bring to the Committee during its examination of Ireland. As the NHRI, we benefit from these insights and referrals on an ongoing basis at a domestic level. We see our work as complementary to the work of civil society and hope that it will add to the richness of understanding of Ireland’s current record on combatting racism.

The Commission remains at the disposal of the CERD Secretariat and Committee to further discuss the material presented in this submission.

Emily Logan Chief Commissioner

IHREC CERD Submission | October 2019 4 Section 2 Key Recommendations The Commission welcomes Ratifications, reservations, the opportunity to provide and domestic incorporation this submission to the of CERD

Committee in advance of The Commission is concerned that since Ireland’s examination under 2011, Ireland has yet to ratify several international treaties of relevance to CERD in December 2019. racial discrimination.2 The Commission recommends that the State ratify these Noting the publication of treaties and protocols as a matter of priority. the Committee’s List of Ireland’s reservation/interpretive declaration Themes on 8 October 2019,1 to Article 4 of the Convention remains, with the State indicating it has no plans to withdraw this summary outlines some it. In light of the settled view that Article 4 is of the key observations compatible with and complementary to the right to freedom of expression, as well as the and recommendations growing body of evidence about significant made in this submission, levels of discrimination against, and troubling attitudes towards, ethnic minorities in Ireland, which are particularly the Commission is of the view that the State’s relevant to the thematic reservation is unnecessary, out of date, and should be withdrawn as a matter of priority. areas highlighted by the Committee. A full schedule The State has yet to incorporate CERD into domestic law, meaning that rights- of recommendations holders remain unable to rely directly on made in this submission the provisions of CERD before the Irish courts. The Commission is of the view that is in the Appendix. the State should take immediate steps to incorporate CERD into domestic law.

While discussions have been held in Parliament in recent years about aspects of human rights treaty ratification and

2 For example, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families; the Optional Protocol to the Convention Against Torture; the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography; Protocol No. 12 to the 1 CERD (8 October 2019), List of Themes in Relation to European Convention on Human Rights; and the Additional the Combined Fifth to Ninth Reports of Ireland, CERD/C/ Protocol to the Convention on Cybercrime concerning the IRL/Q/5-9. criminalisation of acts of a racist and xenophobic nature.

IHREC CERD Submission | October 2019 6 implementation through a temporary sub- Disaggregation of data committee, there is yet to be an established parliamentary organ dedicated to this Ireland does not have sufficient purpose. Through engagement with the disaggregated data to allow an adequate and (Chairman of Dáil Éireann) regular assessment of the extent to which it in 2016, the Commission has highlighted its is meeting its obligations under international support for a full parliamentary committee law across a range of sectors. There continue with a dedicated and expansive human rights to be significant gaps in the national survey and equality mandate and recommends and administrative data available on minority that such a committee be established. ethnic groups, and concerns about its availability, quality, and use. With only a few exceptions, Irish data collection instruments Experiences of discrimination do not collect information on ethnicity as and disadvantage standard, and there is a lack of coordination and integration in the approach to the data that is collected. Overall, this makes it The Commission has produced extensive difficult for authorities, policy-makers, and research demonstrating consistent and civil society organisations to fully assess significant levels of discrimination against the scope, reach, and dynamics of the minority ethnic groups in Ireland, as well as issues faced by minority ethnic groups. troubling attitudes to particular groups in society. Minority ethnic groups also face The Commission has identified deficits significant disadvantage across multiple in the availability of disaggregated and arenas, including in access to labour, appropriately collated data under each area access to services, housing, education, covered by this submission, highlighting the and health. Travellers, Roma, and people pervasiveness of this issue across different of African descent experience significant sectors and State agencies. The Commission barriers to accessing employment. recommends that the State improves its collection and reporting of human rights Examples of such discrimination and equality data on minority ethnic groups and disadvantage, and specific across all sectors to inform policy-making, recommendations to address them are legislative reform, and service provision. referred to throughout this report.

Noting the announcement of plans to establish Hate speech, hate crime, a new anti-racism committee to review and and monitoring make recommendations on strengthening the government’s approach to combatting racism, the Commission recommends that the In keeping with the Committee’s approach anti-racism committee’s work be grounded in General Recommendation No. 35, the in human rights and equality standards. Commission is of the view that the State’s The Commission also recommends that response to hate speech should not only the State should put in place a new national make use of criminal law, but should also action plan against racism and adopt public encompass other policy and regulatory awareness-raising and education measures measures to encourage non-discriminatory to address discrimination and prejudice. discourse, educate the public on the harm

7 IHREC CERD Submission | October 2019 of hate speech, and ensure that its extent incorporate the principles of CERD and and impact are adequately tracked. other fundamental human rights standards.

In the area of criminal law, the Commission is of the view that the Prohibition of Incitement The Traveller community to Hatred Act 1989 is inadequate to effectively address hate speech that calls for a response There is a demonstrable history of in criminal law. The Commission is also chronic racism and discrimination against concerned that the State’s current reliance Travellers in Ireland. The recognition of on judicial discretion in sentencing for hate Travellers as an ethnic minority on 1 March motivated offences places limitations on 2017 by the (Prime Minister) the justice system’s ability to deal with hate in Parliament, was a welcome and long- crime. The Commission is concerned that overdue development. The adoption of the insufficient urgency is being placed by the National Traveller and Roma Integration State on advancing reform on hate crime Strategy 2017–2021 is also to be welcomed. in Ireland, and recommends that the State develop and commit to a clear, time-bound However, Travellers continue to experience action plan for review and modernisation of systemic discrimination in Irish society and hate crime law and practice in Ireland to bring face significant barriers to the enjoyment it in line with its international obligations. of the rights to healthcare, adequate and culturally appropriate housing, Outside the criminal sphere, the Commission education, and decent work. Negative is of the view that significant reform of stereotypes of Travellers in public discourse the regulatory and policy environment is reinforce barriers to public services and essential to address the contemporary exacerbate the disadvantages they face. problem of the circulation of racist and hate speech in the public sphere, both online Examples of these barriers are raised and offline. The Commission also notes throughout this report, as are specific the centrality of education in combatting recommendations to address them. In prejudicial and discriminatory content and the Commission’s view, the persistence hate speech online and recommends that of systemic institutional racism against the State promote and advance digital Travellers and the continued and literacy as a core skill for people of all ages. widespread existence within Irish society of discriminatory attitudes towards Travellers In the modern media environment, a remain among the most significant strong link can be observed between areas where the State is failing to meet editorial decisions and the emergence its obligations under the Convention. of online and real-world hate speech and incidents. In light of this link and the fundamental role a free media plays in Cultural competency in promoting an open, democratic, and equal Ireland’s public service society, the Commission recommends that the State encourage the media to ensure that their codes of professional The Commission is of the view that cultural ethics and press codes are responsive competency and intercultural awareness to the modern media environment and are fundamental to the public service’s

IHREC CERD Submission | October 2019 8 ability to meet its obligations under the training, quality assurance mechanisms, and Public Sector Equality and Human Rights regulations for interpreting services in Ireland. Duty. The Commission is further of the This has resulted in the limited availability view that to better serve the public, the of appropriately trained interpreters with State, as an employer and service provider, technical expertise to facilitate access to must better reflect the diversity of Irish the justice system and health services. The society and should set specific targets for Commission recommends that interpreting diversity in their recruitment procedures. services in Ireland are professionalised and The Commission is concerned that regulated, including through the development currently, public services in Ireland are not of a system of accreditation and training. yet sufficiently responsive and sensitive to the needs of minority communities. In the health sector, there are significant barriers to accessing services and minority In the area of criminal justice and policing, ethnic groups in Ireland experience reports indicate that minority ethnic inequitable health outcomes. One of communities can be under-protected and the strongest themes arising from the over-policed, including due to racial profiling. Commission’s recent consultations is the The 2018 report of the Commission on significant impact of racial discrimination and the Future of Policing also highlighted the prejudice on the mental health of minority continuing shortcomings in the professional ethnic communities. The Commission development and training practices in recommends that the prevalence of An Garda Síochána. The Commission mental health issues among minority welcomes the subsequent launch by the ethnic communities, the barriers they government of a four-year plan for the face in accessing services, and the public implementation of the report findings, which health challenges of addressing the social embraces as a first principle that ‘human determinants of mental ill-health are fully rights are the foundation and purpose reflected in future legislative and policy of policing’ and the creation of a human developments. The Commission also rights unit within An Garda Síochána. recommends that the State introduce measures to progress and evaluate the The Commission recommends that human delivery of cultural competency training rights and equality standards, intercultural across frontline health services and awareness, and cultural competency are ensure that the workforce fully reflects central to the initial and continuous training the diversity of the population. of all members of An Garda Síochána, as well as personnel in the wider criminal justice In the area of housing, provision by local system, including staff within the Office authorities of culturally appropriate of the Director of Public Prosecutions, the accommodation for Travellers has been Prison Service, and detention centres. characterised by discrimination and inertia. The Commission also recommends that There continues to be a widespread failure racial profiling is dealt with appropriately, by local authorities to provide Traveller- including through legislative measures. specific accommodation, with Traveller- specific accommodation budgets subject A significant barrier to cultural competency to persistent underspending. Many and appropriate service provision within Travellers continue to live in unacceptable the public service is the lack of accredited conditions, and many others face persistent

9 IHREC CERD Submission | October 2019 discrimination in the private rental sector. The proposed electoral commission be mandated Commission recommends the introduction to promote more equal political participation of dissuasive sanctions for local authorities of groups including such communities. who fail to provide Traveller-specific and culturally appropriate accommodation The Commission recommends that the in areas where there is a stated need. State undertake positive action measures to enable the political participation of minority Finally, the Commission has highlighted ethnic groups, such as the introduction several areas where the education system is of reserved seats in Parliament and local not currently meeting the needs of minority government, and the introduction of a quota ethnic communities. The application of system for minority ethnic candidates in a past pupil criterion on oversubscribed political party candidate selection. Special schools acts as a barrier, particularly for measures to support engagement in public children from Traveller families and families and political life should be designed and of migrant origin, in accessing education and implemented with the active participation of may result in their segregation in specific the communities they concern and should schools. The Commission recommends include targeted interventions for specific the prohibition of such a criterion. groups, for example, minority ethnic women.

The Commission is further concerned at the lack of supports for Traveller and Roma International protection children. There are consistent reports that reduced timetables are routinely applied The Commission remains concerned at to Traveller children, exacerbating their significant human rights issues relating to exclusion from mainstream education. The Ireland’s international protection system. Commission recommends that targeted educational supports must be available Direct provision centres are experiencing for Traveller and Roma children from their significant capacity issues that are being early years and throughout school, and exacerbated by the housing crisis. The that reduced timetabling is not used in State has been providing emergency lieu of such reports. The Commission also accommodation to international protection recommends the introduction of mandatory applicants in hotels and guesthouses programmes on promoting understanding since September 2018 because of the and combatting racism in initial and capacity issues. The Commission is of the continuous teacher education programmes. view that emergency accommodation does not adequately protect the rights of international protection applicants and that Participation in public life its use should cease as soon as possible.

The Commission notes that the ability of the Regarding the direct provision system more State and its public services to respond to widely, its negative long-term impact on the the needs of minority communities will be rights of individuals seeking international improved through the wider participation in protection in Ireland has been well public life of minority ethnic communities, documented by national and international including Travellers. The Commission has bodies. The Commission has highlighted recommended that the government’s the impact of direct provision on the right to

IHREC CERD Submission | October 2019 10 family life, private life, and health in particular, Human trafficking as well as its impact on the rights of specific groups such as women and children. Human trafficking is a significant concern for the Commission. It has been identified The Commission is of the view that the that Ireland is both a destination and source policy of direct provision and dispersal country for human trafficking, including does not protect the rights of international people trafficked for sexual exploitation, protection applicants, and that its domestic work, fishing, agriculture, the impact in practice amounts to a failure restaurant industry, waste management, and on the part of the State to prevent racial car washing services. There are significant segregation, contrary to Article 3 of CERD. deficiencies in the State’s approach to combatting human trafficking, both in the In light of concerns at the operation of area of investigation and prosecution and in direct provision by private non-State actors that of victim identification and assistance. at considerable expense to the State, and subject to weak accountability mechanisms, Overall, there have been no convictions for the Commission recommends that the trafficking for sexual or labour exploitation State move away from the current for- since the relevant legislative framework profit model of direct provision. In the long was introduced in 2013. The Council of term, the Commission recommends the Europe Group of Experts on Action against complete phasing out of direct provision. Trafficking in Human Beings (GRETA) has raised its concerns that the absence of The Commission has serious concerns appropriate convictions and sentences regarding retrogressive measures on creates a sense of impunity and undermines family reunification introduced in the efforts to support victims to testify. International Protection Act 2015 that limit the statutory right to family reunification The Commission appeared as amicus curiae to members of the nuclear family, and in the case of P. v The Chief Superintendent requires family reunification applications of the Garda National Immigration Bureau & to be made within 12 months of the grant Ors in 2015, wherein the criticised of refugee or subsidiary protection status the limited application of the administrative – a timeframe that is impossible for many arrangements in place, the failure to refugees. The Act also excludes refugees formally set out the nature and detail of the who acquire citizenship by naturalisation identification process, and the lack of clarity from its purview. The Commission has and transparency in decision-making. recommended that the Act be amended to define a family member in sufficiently However, despite this, the State continues broad terms to reflect the understanding to rely on an inadequate administrative of family as articulated in international scheme for the recognition and protection human rights law. The Commission of victims of trafficking. While committing is also of the view that naturalised to ‘carry out a fundamental review’ of the refugees should not be excluded from the formal identification process for victims statutory family reunification regime. of trafficking, the State’s efforts to date have been limited to engagement with the police, State bodies, and civil society, and reviewing the administrative documents that

11 IHREC CERD Submission | October 2019 guide identification. The US Department of State classified Ireland as ‘Tier 2’ status in its 2018 and 2019 Trafficking in Persons reports, citing ‘chronic deficiencies’ in the victim identification process.

The Commission is concerned that the State has yet to adequately recognise the seriousness of human trafficking as a human rights violation in Ireland and afford sufficient priority to combatting it and identifying and supporting its victims. The Commission recommends that the victim identification process, the non- punishment principle when dealing with victims of trafficking, and the provision of specialised services and assistance to victims, all be placed on a statutory footing.

IHREC CERD Submission | October 2019 12 Section 3 National Machinery for the Promotion of Race Equality (Articles 2, 20.3) Gaps in the ratification of international human ʽIreland has yet to ratify rights standards several international treaties and protocols of relevance to The Commission is concerned that Ireland has yet to ratify several international treaties and racial discrimination and the protocols of relevance to racial discrimination promotion of race equality. and the promotion of race equality. These include the International Convention on Domestic incorporation of the Protection of the Rights of All Migrant and reservations to CERD Workers and Members of their Families; the Optional Protocol to the Convention Against Torture;3 the Optional Protocol to In its 2011 Concluding Observations, the the Convention on the Rights of the Child on Committee recommended that Ireland the sale of children, child prostitution, and incorporate CERD into its legal system to child pornography;4 Protocol No. 12 to the ensure its application before the Irish Courts.6 European Convention on Human Rights; and However, CERD has not been incorporated,7 the Additional Protocol to the Convention on and the State report indicates that ‘because Cybercrime concerning the criminalisation all the Convention’s obligations are provided of acts of a racist and xenophobic nature.5 for in domestic legislation, it is not necessary to incorporate the Convention into domestic • law.’8 The Commission notes, however, that non-incorporation in domestic law means that The Commission recommends that the rights holders remain unable to rely directly on State ratify the relevant international the provisions of CERD before the Irish courts.9 treaties and protocols as a matter of priority, including through prioritising the passage of any legislative 6 The Committee (4 April 2011), Concluding Observations and policy reforms necessary for of the Committee on the Elimination of Racial Discrimination: ratification. Ireland, CERD/C/IRL/CO/3-4, p.4. This recommendation is a reiteration of previous Concluding Observations, see The Committee (14 April 2005), Concluding Observations of the Committee on the Elimination of Racial Discrimination: Ireland, CERD/C/IRL/CO/2, p.2. 3 The government has committed to introducing legislation 7 This is consistent with what has been the State’s general by the end of 2019, the General Scheme of the Inspection approach to domestic incorporation of international of Places of Detention Bill, as a vehicle to implement the treaties, rooted in its dualist legal system. Article 29.6 of Optional Protocol to the Convention against Torture. See the provides that ‘no international Department of Justice and Equality (13 June 2019), Prison agreement shall be part of the domestic law of the State Visiting Committee Data. save as may be determined by the .’ This provision 4 The Minister for Children and Youth Affairs recommended has been interpreted as precluding the Irish courts from in January 2019 that Ireland meets all the legal requirements giving effect to an international agreement if it is contrary to and should move quickly to ratify this Protocol. See domestic law, grants rights, or imposes obligations additional Department of Children and Youth Affairs (2 January 2019), to those of domestic law. ‘Ireland joining international stand against sale of children, child 8 The Committee (5 November 2018), Combined Fifth to pornography and child prostitution: Minister Zappone says all Ninth Periodic Reports Submitted by Ireland under Article 9 of legal requirements now in place’. the Convention, Due in 2014, CERD/C/IRL/5-9, p.12. 5 For further information on Ireland’s ratification of 9 For example, in Olaniran & Others v Minister for Justice, international instruments, see https://indicators.ohchr.org/. Equality and Law Reform [2010] IEHC 83, J. Clarke clearly

IHREC CERD Submission | October 2019 14 • •

The Commission recommends that the The Commission recommends that State incorporate CERD into domestic the State withdraw its reservation/ law. interpretative declaration on Article 4 of CERD as a matter of priority.

ʽ...non-incorporation in Monitoring mechanisms domestic law means that for international human rights holders remain rights standards unable to rely directly on On 3 December 2014, a parliamentary the provisions of CERD committee, the Joint Sub-Committee before the Irish courts. on Human Rights relative to Justice and Equality Matters, was established to examine, amongst other things, the ratification The State report indicates that ‘there are by Ireland of international human rights no immediate plans to propose withdrawing treaties.13 During its first meeting, the Ireland’s reservation/interpretive declaration Joint Sub-Committee considered the role on Article 4 of the Convention.’10 The of Parliament in both the ratification and Commission notes the clarity provided by the implementation of international standards, Committee on the compatibility of Article noting, in particular, the guidance from 4 with the rights to freedom of expression, the United Nations (UN) and the Council opinion, and association.11 Furthermore, in of Europe. The Joint Sub-Committee met light of the growing body of evidence about three times before the Parliament was significant levels of discrimination against dissolved on 3 February 2016 and it was and troubling attitudes towards ethnic not re-established following the 2016 minorities in Ireland,12 the Commission is general election. Through engagement of the view that the State’s reservation with the Ceann Comhairle (Chairperson of is unnecessary, out of date, and does not Dáil Éireann) in 2016, the Commission has account for current issues and trends. highlighted its support for a parliamentary committee with a dedicated human rights and equality mandate. As set out further below, the statutory duty on public bodies stated that ratification of international human rights treaties, such as the UN Convention on the Rights of the to proactively promote equality, protect Child, is of no effect in Irish courts. human rights, and eliminate discrimination 10 The Committee, Combined Fifth to Ninth Periodic should be considered in this context. Reports Submitted by Ireland under Article 9 of the Convention, p.12, per The Committee (4 April 2011), Concluding Observations of the Committee on the Elimination of Racial Discrimination: Ireland, p.4. 11 See The Committee (1993), General Recommendation XV on Article 4 of the Convention, p.1 and The Committee 13 See, for example, Joint Sub-Committee on Human (2013), General Recommendation No. 35: Combating Racist Rights relative to Justice and Equality Matters (9 December Hate Speech, CERD/C/GC/35, pp.2, 7. 2015), Joint Sub-Committee on Human Rights Relative to 12 See sections 5 and 6 for further information. Justice and Equality Matters Debate.

15 IHREC CERD Submission | October 2019 The Commission notes that on 20 May 2019, The NGO Standing Committee on a parliamentary committee was established Human Rights (now known as the DFAT with the specific aim of achieving consensus, Committee on Human Rights) brings based on human rights principles, on together representatives from civil society policy directions in respect of key issues to consider human rights issues in the affecting the Traveller community.14 This context of Ireland’s foreign policy and committee is due to be dissolved within obligations under international human rights six months of its first meeting,15 following law. The Commission and the Northern the publication of its final report. Ireland Human Rights Commission are also members of this committee.18 • • The Commission recommends that a full parliamentary Committee on The Commission recommends that Human Rights, Equality and Diversity, the Inter-Departmental Committee on covering all thematic areas arising in Human Rights and the DFAT Committee other parliamentary committees, be on Human Rights fully engage with the established. parliamentary Committee on Human Rights, Equality and Diversity, following its establishment as recommended The Inter-Departmental Committee on above. Human Rights brings together senior officials from several government departments to improve ‘the coherence of the promotion Public Sector Equality and protection of human rights’ and assisting and Human Rights Duty ‘progress towards the ratification by Ireland of key international human rights treaties and timely reporting to UN human rights The Irish Human Rights and Equality bodies.’16 There has also been a more recent Commission Act 2014 places a statutory proposal to amend the terms of reference obligation on public bodies to actively of this Inter-Departmental Committee to promote equality, protect human rights, and include monitoring the government-wide eliminate discrimination in the performance implementation of the National Plan on of their functions.19 This obligation is referred Business and Human Rights 2017–2020.17 to as the Public Sector Equality and Human Rights Duty. This duty is unique across Europe in that it encompasses both equality and human rights within its scope and is an important mechanism through which the 14 For further information, see Committee on Key Issues affecting the Traveller Community. 15 This Committee met for the first time on Tuesday, 24 September 2019. 18 For further information, see Department of Foreign 16 (2015), The Global Island: Ireland’s Affairs and Trade (13 November 2018), Departmental Bodies Foreign Policy for a Changing World, p.36. Data. 17 Department of Foreign Affairs (2015), Working Outline of 19 See section 42 of the Irish Human Rights and Equality Ireland’s National Plan on Business and Human Rights 2016– Commission Act 2014. For further information, see IHREC 2019, p.11 and Government of Ireland (2017), National Plan (2019), Implementing the Public Sector Equality and Human on Business and Human Rights 2017–2020, p.16. Rights Duty.

IHREC CERD Submission | October 2019 16 implementation of international human bearer, ensures the protection of human rights norms, including the Committee’s rights standards in such contexts. As Concluding Observations, can be progressed set out in section 13 of this submission, by public bodies at a national level.20 a particular example is the operation of direct provision centres, many of The assessment of human rights and which are run on a for-profit basis. equality issues under the duty supports a public body to identify service delivery and • workplace policies, procedures, and practices that may need to be adapted to eliminate The Commission recommends discrimination and promote equality of that when the State subcontracts opportunity for people from minority ethnic its functions to non-State actors, groups. Such an assessment should include compliance with the Public Sector consultation with staff and service users Equality and Human Rights Duty should from minority ethnic groups to identify be included as a requirement in all priority actions and monitor progress.21 procurement processes and service level agreements. •

The Commission recommends that, in National legislative complying with their obligations under frameworks the Public Sector Equality and Human Rights Duty, public bodies promote the human rights of, and eliminate As highlighted in the State report,23 there discrimination against, minority ethnic are several legislative frameworks in place to communities through their work. protect people against racial discrimination. Discrimination in the provision of goods and services, accommodation, education, The Commission has repeatedly expressed and employment are prohibited on nine its concerns that accountability mechanisms specified grounds: gender, civil status, family can be weakened where the State delivers status, age, race, religion, disability, sexual its functions through private, non-State orientation, and membership of the Traveller actors.22 Further measures need to be community.24 The race ground includes adopted to ensure that the State, as duty- people who are of different race, colour, nationality, or ethnic or national origins.25

20 See section 29 of the Irish Human Rights and Equality Since the equality legislation was first Commission Act 2014. See also, N. Crowley (2017), ‘A duty enacted in Ireland, there have been repeated to value: Implementing the public sector equality and human rights duty’, Administration, 65(3), p.143. 21 For further information, see IHREC, Implementing the Public Sector Equality and Human Rights Duty. 23 The Committee, Combined Fifth to Ninth Periodic Reports 22 See IHREC (December 2015), Report by the Irish Human Submitted by Ireland under Article 9 of the Convention, Rights and Equality Commission to the UN Committee on pp.28–29. the Rights of the Child on Ireland’s Combined Third and 24 See the Equal Status Acts 2000 to 2015 and the Fourth Periodic Reports, p.12. For further information on Employment Equality Acts 1998 to 2011. the application of the duty in the international protection 25 See section 3 of the Equal Status Act 2000 (revised) and system, see section 13. section 6 of the Employment Equality Act 1998 (revised).

17 IHREC CERD Submission | October 2019 28 29 30 in education, employment, housing, and ʽ other areas, are significantly overrepresented ...minority ethnic groups among those living in poverty and are experience cumulative disproportionately excluded from accessing social assistance.31 The Commission is of disadvantage and the view that prohibiting discrimination discrimination in education, based on socio-economic status would employment, housing, and serve the objectives underpinning the equality legislation and that greater other areas, are significantly recognition is needed of the multiple forms overrepresented among of discrimination that many groups face.32 those living in poverty and • are disproportionately excluded from accessing The Commission recommends that social assistance. the equality legislation is amended to prohibit discrimination on the ground recommendations to expand these grounds of socio-economic status in all areas to include a prohibition on discrimination covered by the legislation and to permit based on a person’s socio-economic claims across multiple grounds.33 status.26 Furthermore, while an individual may bring proceedings on one or more of the existing nine grounds of discrimination, The Commission notes that access to a there is no provision for compound remedy for discriminatory refusal of entry discrimination across multiple grounds.27 to a licensed premises (including bars, public houses, hotels, or clubs) is governed by It is highlighted throughout this submission section 19 of the Intoxicating Liquor Act that minority ethnic groups experience 2003, rather than by the Equal Status Acts cumulative disadvantage and discrimination 2000 to 2015. Therefore, these cases must be taken to the , rather than the national Equality Tribunal (the Workplace Relations Commission (WRC)). Bringing 26 The government has indicated that it is commissioning research to establish the extent and prevalence of socio- a case under the 2003 Act is procedurally economic discrimination which needs to be addressed, and where a legislative response is needed. See Minister of State David Stanton TD (speech, 22 March 2018), ‘Poverty and discrimination – two sides of the same coin’. The Commission 28 See section 8. notes that Deputies Jim O’Callaghan and Fiona O’Loughlin 29 See section 9. (from the Fianna Fáil party) introduced a Private Member’s 30 See section 11. Bill to Dáil Éireann in June 2017 with the aim of amending 31 See section 9. the Equality Acts to prohibit discrimination on the basis 32 See IHREC (May 2015), Report to UN Committee on of a person’s social and economic background. This Bill is Economic, Social and Cultural Rights on Ireland’s Third Periodic not supported by the government and has not progressed Review, pp.22–24. since November 2017. See Dáil Éireann (8 November 2017), 33 The Commission previously made this recommendation ‘Equality (miscellaneous provisions) bill 2017: second stage’. to the Committee on the Elimination of Discrimination 27 IHREC (January 2017), Submission to the United Nations Against Women in 2017. See IHREC, Submission to the Committee on the Elimination of Discrimination Against United Nations Committee on the Elimination of Discrimination Women on Ireland’s Combined Sixth and Seventh Periodic Against Women on Ireland’s Combined Sixth and Seventh Reports, p.34. Periodic Reports, p.34.

IHREC CERD Submission | October 2019 18 complex, may involve unwanted publicity, and National policy frameworks carries a higher risk of costs and court fees. Furthermore, criticisms have been raised that The current national policy frameworks the District Court is less efficient and takes focused on the promotion of race equality place in an adversarial and public context, as include the Migrant Integration Strategy opposed to the more victim-centric set up 2017–2020,36 the National Traveller and of the WRC.34 The Commission previously Roma Inclusion Strategy 2017–2020,37 and highlighted these issues to the Review Group the Second National Intercultural Health of the Administration of Civil Justice in 2018, Strategy 2018–2023.38 While the targeted noting that the transfer of jurisdiction to actions and objectives relating to people the District Court has created a much more from minority ethnic groups in these onerous process for people wishing to bring strategies are welcome, the diversity in complaints. In 2016, 28 applications were Irish society and the multiple forms of made to the District Court under the 2003 discrimination that specific groups face Act – 26 of which were lodged by members should be reflected across all national of the Traveller community – and 27 of these policy frameworks, including those applications were struck out, withdrawn, or relating to women and girls,39 those with adjourned. In 2017, 51 out of 52 applications disabilities,40 the LGBTI+ community,41 were lodged by members of the Traveller and poverty and social inclusion.42 community, and 50 of these applications were struck off, withdrawn, or adjourned.35 The Commission notes that building a successful intercultural society goes • beyond the focus on integration and inclusion in the existing policy frameworks The Commission recommends and requires the State to expressly that the State return complaints of acknowledge and address racism and racial discrimination in licensed premises to discrimination. The Commission regrets the purview of the Equal Status Acts the State’s failure to renew the National and the jurisdiction of the Workplace Relations Commission.

36 Department of Justice and Equality (2017), The Migrant Integration Strategy 2017–2020. 37 Department of Justice and Equality (June 2017), National Traveller and Roma Inclusion Strategy 2017–2021. 38 HSE (2018), Second National Intercultural Health Strategy 2018–2023. 39 Department of Justice and Equality (April 2017), National 34 Advisory Committee on the Framework Convention for Strategy for Women and Girls 2017–2020. the Protection of National Minorities (October 2018), Fourth 40 Department of Justice and Equality (July 2017), National Opinion on Ireland, ACFC/OP/IV(2018)005, p.10. Disability Inclusion Strategy 2017–2021. 35 Advisory Committee on the Framework Convention 41 Department of Children and Youth Affairs (2018), LGBTI+ for the Protection of National Minorities, Fourth Opinion National Youth Strategy 2018–2020. The Department of on Ireland, p.10. In line with section 40 of the Irish Human Justice and Equality is also in the process of developing a Rights and Equality Commission Act 2014, the Commission national LGBTI inclusion strategy. has represented a number of individuals who were denied 42 The Commission is aware that the new social inclusion service in a licenced premises on the grounds of their strategy of the government, Roadmap for Social Inclusion membership of the Traveller community. See IHREC 2019–2025, is being finalised and is expected to be published (18 December 2017), Travellers Denied Service Secure shortly. See Department of Employment Affairs and Social Settlement and Redress. Protection (25 September 2019), Departmental Strategies.

19 IHREC CERD Submission | October 2019 Action Plan Against Racism 2005–2008 new anti-racism committee to review and following its conclusion, noting that the make recommendations on strengthening final report on this policy framework was the government’s approach to combatting entitled Not an End – Just a Beginning.43 racism.49 Further information regarding the anti-racism committee’s terms of While the Commission has an important reference, mandate, and membership is statutory role in promoting interculturalism, required, including assessing how this tolerance, and the acceptance of diversity44 committee will advance the implementation (as referenced in the State report45), further of human rights standards on eliminating measures are needed to ensure that the racial discrimination, be underpinned by necessary infrastructure to tackle racial robust and disaggregated data,50 and discrimination is in place. The Commission facilitate the active and direct participation notes that the disbanding of the National of minority ethnic communities.51 Consultative Committee on Racism and Interculturalism in 2008 due to budget • cuts resulted in the discontinuation of the existing mechanism for reporting The Commission recommends that and monitoring racist incidents.46 While the State should put in place a new the Office for the Promotion of Migrant national action plan against racism. Integration is tasked with monitoring trends in racially motivated incidents,47 it is unclear how it uses collated statistics • to inform and influence State policy in combatting racism and xenophobia.48 The Commission recommends that the work of the new anti-racism In July 2019, the Department of Justice and committee should be grounded in Equality announced its plans to establish a human rights and equality standards, ensure the participation of rights holders, and include data specialists.

43 The Commission has previously raised these concerns to the UN Committee on Economic, Social, and Cultural Rights. See IHREC, Report to UN Committee on Economic, 49 Department of Justice and Equality (28 June 2019), Social, and Cultural Rights on Ireland’s Third Periodic Review, ‘Minister Stanton announces new anti-racism committee’. pp.11, 24. 50 The Commission notes that the Special Rapporteur 44 See section 10(1)(b) and (d) of the Irish Human Rights on Contemporary Forms of Racism, Racial Discrimination, and Equality Commission Act 2014. See also, IHREC, Xenophobia, and Related Intolerance welcomed the Race Strategy Statement 2019–2021, p.8. Disparity Audit in the UK and its accompanying public 45 The Committee , Combined Fifth to Ninth Periodic database that provides official data on how race and Reports Submitted by Ireland under Article 9 of the ethnicity affect life, death, health, education, employment, Convention, para. 26. and education. The Special Rapporteur encouraged other 46 See also, ECRI (19 February 2013), ECRI Report on Ireland governments to adopt this data-led approach. See Office (Fourth Monitoring Cycle), p.7. of the High Commissioner for Human Rights (2018), End of 47 For more on the recording and monitoring of hate Mission Statement of the Special Rapporteur on Contemporary speech and hate crime incidents, see section 6. Forms of Racism, Racial Discrimination, Xenophobia and 48 The Commission has previously raised these concerns Related Intolerance at the Conclusion of Her Mission to the with the UN Committee on Economic, Social, and Cultural United Kingdom of Great Britain and Northern Ireland. Rights. See IHREC, Report to UN Committee on Economic, 51 See Article 5(c) of CERD on the ‘right…to take part in the Social, and Cultural Rights on Ireland’s Third Periodic Review, government as well as in the conduct of public affairs at any pp.24–25. level and to have equal access to public service.’

IHREC CERD Submission | October 2019 20 The Commission is concerned with the is concerned that these mechanisms are adequacy of the State’s mechanisms to inadequate for ensuring the effective and facilitate the participation of minority meaningful participation of Travellers in the ethnic communities in the formulation policy-making process, as highlighted by of national and local policies. Firstly, in the findings of a recent independent expert broad areas of policy development that review55 and the concerns raised by Traveller relate to the general population, there organisations and community representatives can be no specific mechanisms in place engaging in these mechanisms.56 Research to ensure that such communities are carried out by Travellers in 2016 among 95 represented, for example, in the former families reported that 51% of respondents work of the Citizen’s Assembly52 and the strongly disagreed and 47% disagreed with National Youth Mental Health Task Force.53 the statement: ‘I feel my voice and experience is listened to by the Council and the Although there can be a greater emphasis government when decisions about Traveller on the inclusion of minority ethnic accommodation are being made.’57 communities in issues that more directly affect them, the measures adopted can be insufficient in practice. The Housing (Traveller Accommodation) Act 1998 requires each local authority to establish a local traveller accommodation consultative committee, on to the Committee, the State does not identify or discuss which local Traveller groups are represented, the role of Local Traveller Accommodation Consultative and to produce a Traveller accommodation Committees or the National Traveller Accommodation programme for its area in consultation with Consultative Committee in its presentation of the processes by which Traveller accommodation is delivered at the local this committee. The Act also provides for government level. See The Committee, Combined Fifth to a single National Traveller Accommodation Ninth Periodic Reports Submitted by Ireland under Article 9 of Consultative Committee, to which Traveller the Convention, pp.7–8. groups and representatives are nominated to 55 A July 2019 review by the Traveller Accommodation Expert Review Group identifies wide-ranging weaknesses in oversee the implementation of the legislation the structure, mandate, and operation of both the National at a national level.54 However, the Commission Traveller Accommodation Consultative Committee and the Local Traveller Accommodation Consultative Committees, and ultimately recommends that both mechanisms be revised substantially. See D. Joyce, C. Norton, and M. Norris 52 The Citizens’ Assembly is a body comprising a (2019), Traveller Accommodation Expert Review, pp.62–64. chairperson and 99 citizens, randomly selected to be broadly 56 There have been several reports of Traveller representative of the Irish electorate. It was established in representatives on the National Traveller Accommodation July 2016 to consider a limited number of significant and Consultative Committee or a Local Traveller contentious policy issues, including access to abortion Accommodation Consultative Committee resigning or services and climate change. See The Citizen’s Assembly staging a walk-out protest due to the lack of due process Factsheet. or consultation and ongoing disputes with local authority 53 The taskforce was convened in 2016 as a community-led officials. Some Traveller representatives have been reported group to develop proposals and recommendations relating as saying that they could no longer ‘collude with a system to youth mental health. Members of the taskforce were that is failing’ Travellers. See K. Holland (3 November 2015), invited to participate directly by the Minister of State for ‘Traveller representatives walk out of housing meeting’, The Mental Health and Older People. No representatives of a Irish Times; (26 May 2018), ‘Row over Traveller-focused organisation were on the taskforce. See halting site leads to resignations’, The Sligo Champion; and National Youth Mental Health Taskforce (2017), National K. Holland (1 November 2018) ‘Row stalls work on Traveller Youth Mental Health Taskforce Report 2017. Accommodation Programme‘, . 54 See sections 20–22 of the Housing (Traveller 57 Travellers of North Cork (2017), Human Rights Accommodation) Act, 1998. It is notable that in its report Monitoring, p.7.

21 IHREC CERD Submission | October 2019 • There continue to be significant gaps in the national survey and administrative data The Commission recommends that available on minority ethnic groups, and the State implements its obligation concerns about its availability, quality, and to ensure the effective participation use. The Commission identified deficits of minority ethnic communities in the in the availability of disaggregated and process of developing, monitoring and appropriately collated data under each area reviewing policy frameworks, at both a covered by this submission,62 highlighting national and local level. the pervasiveness of this issue across different sectors and State agencies. With only a few exceptions,63 Irish data collection The collection and instruments do not collect information on publication of ethnicity as standard, and there is a lack of coordination and integration in the approach disaggregated data to the data that is collected. Overall, this makes it difficult for authorities, policy- The Commission notes the Committee’s makers, and civil society organisations to fully criticisms in 2011 about the unavailability assess the scope, reach, and dynamics of of disaggregated statistical data on the the issues faced by minority ethnic groups. issues faced by minority ethnic groups in Ireland, including data on racial discrimination The Commission is active in promoting and reports of violence.58 This reflects the need for improvements to the data the repeated concerns raised by the collection systems in place, including Commission and other treaty monitoring through its participation since 2017 with bodies, including the Committee on the Census Advisory Group convened Economic, Social, and Cultural Rights59 by the Central Statistics Office (CSO).64 and the Committee on the Rights of the Such improvements will be crucial to the Child,60 that Ireland does not have sufficient fulfilment of the Public Sector Equality disaggregated data to allow an adequate and Human Rights Duty by public bodies and regular assessment of the extent to and enable accurate comparisons which it is meeting its obligations under between Ireland and other countries. international law across a range of sectors.61

62 For example, this submission highlights deficits in the availability of data on hate crime and hate speech, 58 The Committee (4 April 2011), Concluding Observations gender-based violence, the experiences of minority ethnic of the Committee on the Elimination of Racial Discrimination: groups in the housing, education, and health sectors, Ireland, p.5. human trafficking, statelessness, access to the labour 59 Committee on Economic, Social, and Cultural Rights market, social services, unaccompanied and separated (8 July 2015), Concluding Observations on the Third Periodic children, access to justice, and monitoring mechanisms for Report of Ireland, E/C.12/IRL/CO/3, p.2. international human rights standards. 60 Committee on the Rights of the Child (2016), Concluding 63 For example, the Census of the Population and the Observations on the Combined Third and Fourth Periodic Equality and Discrimination Survey conducted by the CSO. Reports of Ireland, CRC/C/IRL/CO/3-4, p.4. 64 Note, following recommendations from the Census 61 See, for example, IHREC (13 February 2017), Statement Advisory Group, the CSO recently updated its questions on of the Irish Human Rights and Equality Commission to the religion and ethnic groups for Census 2021. See CSO (10 United Nations Committee on the Elimination of Discrimination July 2019), ‘Press statement Census 2021 date and questions Against Women. approved by government’.

IHREC CERD Submission | October 2019 22 • as philanthropic trusts and foundations, and in engaging in legitimate advocacy The Commission recommends that aiming to influence political decisions and the State improves its collection and policy-making, including with regard to reporting of data on minority ethnic the elimination of racial discrimination.68 groups across all sectors, to inform policy-making, legislative reform, and service provision. ʽWith only a few exceptions, Irish data Support for civil society collection instruments do organisations not collect information on ethnicity as standard, In light of funding cuts to organisations during the economic recession,65 the and there is a lack of Commission has emphasised the importance coordination and integration of ensuring that the State supports the in the approach to the data vital role of civil society. To an increasingly large extent, the relationship between that is collected. the State and civil society organisations is focused on arrangements relating to the During the Commission’s Be Heard on CERD subcontracting and delivery of services.66 consultation, the young people identified However, the advocacy role of such the importance of ‘allies’ in challenging racial organisations in democratic discourse and abuse and discrimination and supporting in the promotion of human rights needs victims, including within youth work, to be fully recognised and protected.67 information, and advice services. In line The Commission notes that the Electoral with the State’s obligations under Article Act 1997, as amended, introduced new 7 of CERD, they also highlighted that such regulatory measures relating to advocacy allies and services would play an important for political purposes and donations role in challenging misinformation and from people without Irish citizenship and myths about minority ethnic communities companies not resident or based in Ireland. in Ireland, and act as a negotiation space The broad interpretation of these measures for trust to be built about existing agencies is of concern due to the potential effect and societal structures. The Commission on civil society organisations in seeking notes that youth work services experienced funding from international sources, such funding cuts of more than 30% during the economic recession and that they continue to be significantly under-resourced.69

65 See IHREC, Report to UN Committee on Economic, Social and Cultural Rights on Ireland’s Third Periodic Review, p.11. 66 N. O’Connor and M. Ketola (2018), Enabling Citizens: Powering Civil Society. 67 See IHREC (July 2019), Statement on the Ratification 68 See IHREC (January 2019), Policy Statement on the of the Council of Europe Convention on Preventing and Electoral Acts and Civil Society Space in Ireland. Combating Violence Against Women and Domestic Violence, 69 National Youth Council of Ireland (October 2018), Budget p.11. 2019 – Post-Budget Analysis, pp.2, 4–5.

23 IHREC CERD Submission | October 2019 •

The Commission calls on the State to ensure that organisations working with minority ethnic communities across a range of sectors receive adequate support.

•

The Commission recommends that a review of the Electoral Acts be undertaken to ensure an enabling legal framework and a conducive political and public environment for civil society organisations advocating for minority ethnic communities.70

70 For more detailed recommendations by IHREC in this area, see IHREC, Policy Statement on the Electoral Acts and Civil Society Space in Ireland.

IHREC CERD Submission | October 2019 24 Section 4 Legal Framework on Citizenship and Nationality (Articles 2(1), 5(d)(iii)) While citizenship laws based on citizenship must fall within the remit of be proportionate and national discretion,71 the pursue a legitimate aim.73 practical and legal impact of restrictions on citizenship The legal framework affect the protection of on citizenship fundamental human rights, The 27th amendment of the Constitution including the guarantee of of Ireland, which was approved by equality.72 The Committee referendum on 11 June 2004, removed the automatic right to citizenship for all has called on states to children born in the State and provided ensure that particular the Oireachtas (Irish Parliament) with the power to legislate for citizenship.74 groups are not discriminated against regarding access Following the referendum, the Irish Nationality and Citizenship Act 2004 was to citizenship, and to pay introduced, which provides that children born due attention to possible in Ireland whose parent is Irish or British, or had permission to reside in Ireland for three barriers to naturalisation of the previous four years,75 are entitled to citizenship at birth.76 Ongoing inward that may exist for long-term migration and the existence of established or permanent residents. diverse communities, including due to State It has also confirmed that differential treatment 73 Office of the High Commissioner for Human Rights (1 October 2002), CERD General Recommendation XXX on Discrimination against Non-Citizens, section IV. 74 See Article 9 of the Constitution of Ireland; 79% of 71 Article 1(3) of CERD states that ‘Nothing in this voters supported the change to the Constitution, see The Convention may be interpreted as affecting in any way the Irish Times (12 June 2004), ‘Citizenship referendum carried by legal provisions of States Parties concerning nationality, massive majority’, The Irish Times. citizenship or naturalization, provided that such provisions 75 Time spent undocumented or resident with an do not discriminate against any particular nationality.’ international student permission does not qualify for 72 For example, as some of the rights protected under meeting this requirement. the Constitution of Ireland refer explicitly to citizens while 76 Section 6 of the Irish Nationality and Citizenship Act others do not, there is uncertainty as to the scope of 1956, as amended by the Irish Nationality and Citizenship protection provided under constitutional law to persons Acts 2001 and 2004. Note, Irish citizenship can also be without Irish citizenship. Article 40, which provides for acquired through descent. A child born abroad who has a rights to equal treatment, freedom of association, freedom grandparent born on the island of Ireland or a parent who of expression, and other rights, including unenumerated claimed their Irish citizenship before the child’s birth is rights, refers specifically to citizens. For further analysis, see automatically entitled to claim Irish citizenship by applying Irish Human Rights Commission (May 2004), Observations for a foreign birth registration. See Immigrant Council of on the Proposed Referendum on Citizenship and on the 27th Ireland (2016), Child Migration Matters: Children and Young Amendment to the Constitution Bill 2004, pp.7–9, 14. People’s Experiences of Migration, p.37.

IHREC CERD Submission | October 2019 26 policies, such as the active recruitment of Commission notes that there is a continued migrant workers and the focus on attracting absence of any pathway to residency for multinational investment,77 ensure that undocumented people in Ireland.82 children born to parents who fall outside of these categories will continue to be a growing The Commission is concerned about the population.78 There have been reports of a extent to which the legislative framework small number of cases in which children born on citizenship is serving a legitimate or in Ireland have faced deportation, including proportionate purpose, considering its to countries to which they have never been.79 impact on children’s access to third- level education83 and other rights. A 2018 opinion poll revealed that 71% of people agree that anyone born in Ireland ʽ 84 There have been reports of should be entitled to citizenship. a small number of cases in which children born in Ireland Citizenship by naturalisation have faced deportation, including to countries to Under the current law, children born in Ireland without an automatic right to citizenship, which they have never been. or people who move to Ireland, can apply for naturalisation as Irish citizens when they There are also between 2,000 and 6,000 meet certain conditions, including residence undocumented children living in the State.80 and ‘good character’ requirements.85 The According to research conducted with Department of Justice and Equality is also undocumented parents, 68% of their children considering the introduction of civics and were born in Ireland. These undocumented language tests for those seeking citizenship.86 children have spent an average of five years in the Irish education system, while 8% 81 have spent a decade in the system. The 82 These issues were raised at the Civil Society Forum on 27 May 2019. See also, Immigrant Council of Ireland, Child Migration Matters, p.40. Note, the Department of Justice and Equality introduced a special three-month scheme for 77 Department of Jobs, Enterprise, and Innovation (30 non-EEA nationals who originally came to Ireland on student July 2014), ‘Next phase of FDI policy must be based on talent, visas to apply for permission to remain in the State. See technology, sectors and great places to live – Minister Bruton’. Department of Justice and Equality (15 October 2018), A recent report from the Central Bank has also advised that ‘Special Scheme for non-EEA nationals who held a student net inward migration is a critical source of new employees permission in the State during the period 1 January 2005 and is needed to support continued economic growth. See to 31 December 2010’ and Immigrant Council of Ireland Central Bank of Ireland (July 2019), ‘Employment growth: (15 October 2018), ‘More compassion needed for new where do we go from here?’, pp.4–5. immigration regularisation scheme’. 78 Children’s Rights Alliance (2004), Immigration and 83 For further information on access to further and third- Citizenship in Ireland. level education, see section 8. 79 Seanad Éireann debate (21 November 2018), ‘Irish 84 This poll is based on a nationally representative sample nationality and citizenship (naturalisation of minors born in of 905 eligible Irish voters aged 18 years and over. The Ireland) bill 2018: second stage’. margin of error is +/- 3.3%. The Sunday Times (November 80 Migrant Rights Centre Ireland (MRCI) (2016), Ireland is 2018), ‘Opinion poll’, the Sunday Times, p.13. Home 2016. 85 Part III of the Irish Nationality and Citizenship Act 1956, 81 This research involved a survey of 108 undocumented as amended by the Irish Nationality and Citizenship Acts parents raising their children in Ireland. MRCI (July 2017), 2001 and 2004. Growing Up Undocumented in Ireland. 86 Department of Justice and Equality (February 2017), The

27 IHREC CERD Submission | October 2019 The Commission has several concerns the transition costs that can be involved due about the citizenship-by-naturalisation to the need for legal advice or translation process. Firstly, children cannot make an services.91 As highlighted by one young application for naturalisation independently person, ‘access to citizenship and residency and must rely on a parent or guardian shouldn’t discriminate on the basis of socio- to do so, which fails to acknowledge economic background and financial means.’ their evolving capacities and status as independent rights-holders. In most cases, Applications for citizenship are granted children cannot apply for naturalisation at the absolute discretion of the Minister until their parent naturalises first, which for Justice and Equality.92 Issues regarding can delay their access to citizenship.87 the application of naturalisation rules in individual cases have consistently come The Commission has also been informed before the High Court in the form of judicial that the Irish Naturalisation and Immigration review proceedings, including due to the Service (INIS) routinely refuses to accept restrictive interpretation by the Minister application forms for naturalisation signed of the conditions that must be met.93 by social workers on behalf of children in Applicants can be deemed as failing to care.88 This can arise in circumstances meet the good character requirement where a child does not have any contact with on the basis of their moral character or if their birth parents and has lived in Ireland for they have come to the adverse attention a number of years under a full care order. of An Garda Síochána (the national police service in Ireland).94 The Minister for INIS89 has committed to keeping the fees Justice and Equality recently found that for naturalisation under regular review to he was not satisfied an applicant was of ensure that costs are reasonable and do good character as she had come in contact not deter qualified applicants.90 At the Be with the Gardaí on two occasions, once Heard on CERD consultation, the high costs of becoming a citizen were raised, including

91 It was reported that families often cannot afford to pay for multiple citizenship applications at once, resulting in Migrant Integration Strategy: A Blueprint for the Future, p.23 different family members having different statuses. and Government of Ireland (2019), The Migrant Integration 92 The High Court has said that the Minister’s discretion Strategy 2017–2020: Progress Report to Government, p.24. in naturalisation cases is ‘as absolute as it is possible to get 87 See Immigrant Council of Ireland, Child Migration in a system based on the rule of law.’ See AMA v Minister for Matters, p.38. Justice and Equality [2016] IEHC 466. 88 Section 18(3) of the Child Care Act 1991 provides that 93 C. Murphy (2013), ‘Reconciling sovereignty claims with where a care order is in force, the Child and Family Agency individual rights? Access to citizenship after Mallak and shall ‘have the like control over the child as if it were his Sulaimon’, The Irish Jurist, 49(1), pp.193–202. For example, parent; and do what is reasonable…in all the circumstances in October 2019, the Court of Appeal upheld the appeal of the case for the purpose of safeguarding or promoting the of a teenager who had been refused citizenship by the child’s health, development or welfare.’ Minister on the grounds that her Irish associations were 89 For further information, see www.inis.gov.ie. not ‘sufficiently strong’ to warrant naturalisation. The 90 Department of Justice and Equality, The Migrant teenager had lived with her family in Ireland for four and a half Integration Strategy, p.22 and Department of Justice and years prior to her citizenship application and is in full-time Equality (18 June 2019), ‘Naturalisation applications’. The education. See M. Carolan (14 October 2019), ‘Teenage girl application fee for citizenship is €175 and the certification wins appeal over refusal of Irish citizenship’, The Irish Times. fee, payable on issue of a certificate of naturalisation, 94 B. Otukoya (2018), ‘Super-Citizens: Defining the “good is €950. Note, there is no certification fee for stateless character” requirement for citizenship acquisition by persons. naturalisation’, Hibernian Law Journal, 17(1), pp.80–88.

IHREC CERD Submission | October 2019 28 as a witness in respect of child neglect in the State must be unbroken and and cruelty and second when she made uninterrupted in order to be continuous. a complaint about racially motivated The Court concluded that a person who misbehaviour against her family. The High travels abroad, including to Northern Court has ordered the Minister to reconsider Ireland, for a single day or more could his refusal of citizenship in this case.95 not be considered to be continuously In another recent case, the High Court resident in Ireland and, therefore, is not quashed the Minister’s decision to deny eligible for citizenship.100 The Commission citizenship to a child on the grounds that has serious concerns about the strict her father was not of good character as he interpretation of the citizenship rules in had engaged in criminal conduct, including this regard and its potential impact on domestic violence, towards her mother.96 the approval rate of applications. It also notes that this High Court judgment is Under the citizenship rules, applicants being appealed101 and the Department must have a total residence in the State of Justice and Equality has committed amounting to five years out of the to introducing legislation to resolve the previous nine years, including a period of issues arising from its findings.102 one year’s continuous residence in the State immediately before the date of The Supreme Court has confirmed that application.97 There have been reports the Minister for Justice and Equality has that absences from the State in the year a duty to provide unsuccessful applicants prior to application have been increasingly for naturalisation with reasons for the identified as the reason for the refusal of refusal or provide justification for not citizenship.98 The policy of the Minister providing reasons, to allow the applicant to for Justice and Equality has been to allow challenge the decision.103 However, aside applicants a discretionary absence period of six weeks without it impacting on the continuous residence requirement.99 100 Jones v Minister for Justice and Equality [2019] IEHC 519. However, in July 2019, the High Court 101 This judgment is being appealed by the applicant, delivered a judgment finding that the but the Minister for Justice and Equality has also asked Minister has no power to introduce such the Court of Appeal to overturn the ‘very restrictive’ finding of the High Court in relation to the interpretation a discretionary policy and that residence of continuous residence. The Court reserved judgment in this case on 8 October 2019. For further information see, A. O’Loughlin (8 October 2019), ‘Judgment reserved on citizenship ruling appeal as judges consider “continuous 95 I v The Minister for Justice and Equality [2019] IEHC 515. residence” interpretation’, The . 96 Iurescu (a minor) v The Minister for Justice and Equality & 102 On Thursday 25 July 2019, the Minister for Justice Ors [2019] IEHC 535. and Equality obtained Cabinet approval for a proposed 97 The Minister for Justice and Equality has the power to bill seeking to address the recent interpretation by the dispense with these conditions of naturalisation in certain High Court of the continuous residence requirement. The circumstances. See Part III of the Irish Nationality and intention was to have a bill drafted on an urgent basis and Citizenship Act 1956, as amended by the Irish Nationality before the Houses of the Oireachtas for consideration by and Citizenship Acts 2001 and 2004. September 2019. See Department of Justice and Equality 98 F. McGinnity, E. Fahey, E. Quinn, S. Arnold, B. Maître, and (29 July 2019), ‘Updated statement from INIS on the recent P. O’Connell (2018), Monitoring report on integration 2019 judgment in the High Court Citizenship case’. (ESRI and Department of Justice and Equality), p.73. 103 Mallak v Minister for Justice Equality and Law Reform 99 McGinnity et al., Monitoring Report on Integration 2018, [2012] IESC 59. See also, J. Stanley (2017), Immigration and p.73. Citizenship Law (Dublin: Round Hall, 2017), pp.111–112, 895.

29 IHREC CERD Submission | October 2019 from applying to the High Court for a judicial • review, there is no independent appeals mechanism available for naturalisation The Commission recommends the decisions.104 Furthermore, in several cases, introduction of a statutory right the Minister has not disclosed the reasons to an independent appeals process for refusing naturalisation on national for citizenship-by-naturalisation security grounds. This deprives applicants decisions. of any meaningful opportunity to challenge the decision on substantive grounds or to make a new application for naturalisation.105 Revocation of certificates of naturalisation •

The Commission recommends that the While the State cannot revoke the State provide statutory underpinning citizenship of a non-naturalised Irish for the good character requirement to citizen, the Minister for Justice and Equality increase transparency and consistency may revoke a certificate of naturalisation in its application, with recognition of under certain circumstances.106 children as individual rights holders and people’s right to access justice. Following an initial notification of an intention to revoke, the affected individual may apply to the Minister for a quasi-judicial inquiry • as to the reasons for the revocation. The case is then referred to a Committee of The Commission recommends that the Inquiry that subsequently reports to the State provide statutory underpinning Minister, though its recommendations are for the continuous residence not binding. The affected individual can requirement, adopting an expansive call evidence and examine witnesses, but interpretation that takes into account legal aid is not available. The Commission people’s right to private and family notes the recent comments of the Chief life and to have meaningful access to Justice that the scope of the areas employment. currently covered by the legal aid system needs to be considerably widened.107

106 The Minister may revoke a certificate of naturalisation if satisfied that the person to whom it was granted procured 104 Stanley, Immigration and Citizenship Law, p.902. Note, the certificate by fraud, misrepresentation (whether the judicial review action is limited and does not review innocent or fraudulent), or concealment of material facts or the merits of a case or questions of fact. Also, the High circumstances; failed in their duty of fidelity to the nation Court does not have the power to alter or replace the and loyalty to the State; was ordinarily outside the State administrative decision. See Immigrant Council of Ireland, for a continuous period of seven years without registering Child Migration Matters, p.125. annually in the prescribed manner; is also a citizen of 105 Stanley, Immigration and Citizenship Law, pp.896–898. a country with which the State is at war; or has by any The INIS website notes that in reapplying for citizenship by other voluntary act other than marriage acquired another naturalisation, an application should ‘pay careful attention’ citizenship. See section 19 of the Irish Nationality and to the reasons the previous application was refused. See Citizenship Act 1956. www.inis.gov.ie/en/INIS/Pages/WP16000022. 107 Law Society Gazette (16 September 2019), ‘“Moral

IHREC CERD Submission | October 2019 30 There is no right of appeal to a decision fidelity to the nation and loyalty to the State, of the Committee of Inquiry or the final which ‘invites an unpredictable, subjective decision of the Minister for Justice and application of a kind hostile to the concept Equality.108 As of December 2018, five of ‘due process’ or ‘due course of law’’.112 revocations had taken place.109 The Minister established the first Committee of Inquiry • into revocations in March 2018110 and began to examine cases from December 2018.111 The Commission recommends that the State immediately makes legal In some circumstances, individuals aid available to all people in respect renounce their existing citizenship to of whom the Minister for Justice and become an Irish citizen, such that the Equality proposes to revoke citizenship. revocation of naturalisation could lead to an individual becoming stateless. In the absence of a formal statelessness • determination procedure in Ireland, the consequences of revocation are The Commission recommends that potentially very serious. Revocation of Irish the State review section 19 of the Irish citizenship may also amount to revocation Nationality and Citizenship Act 1956 on of European Union (EU) citizenship, with the revocation of citizenship concerning consequences for a range of rights. guarantees of due process and fair procedure and the need for clarity on Irish constitutional law experts have the duty of fidelity to the nation or questioned the constitutionality of this loyalty to the State. framework, owing both to the drastic nature of the revocation of citizenship and the question of whether anyone other Stateless people than a judge in a court could order it. In addition, these experts comment on the Ireland is a State party to both the 1954 vague criterion of failure in the duty of Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.113 However, argument” for civil legal aid boost – Clarke’. there is currently no formal process for 108 The affected individual can challenge the Minister’s determining statelessness,114 and there is an decision by way of judicial review. 109 It is reported that those five individuals accepted the revocation and did not appeal to the Committee of Inquiry, see C. Gallagher (28 January 2019), ‘Immigrants facing 112 G. Hogan, G. Whyte, D. Kenny, and R. Walsh (2018), Kelly: revocation of citizenship not entitled to legal aid’, The Irish The Irish Constitution, (5th ed., Bloomsbury Professional), Times. Prior to 2015, there were no instances of revoking p.166. certificates of naturalisation, see Minister for Justice 113 Under this Convention, Ireland reserves the right to and Equality, Charles Flanagan TD (11 December 2018), deprive naturalised citizens of their citizenship, as provided ‘Naturalisation certificates’. for under section 19 of the Irish Nationality and Citizenship 110 The Committee of Inquiry comprises a former minister Act 1956. of government, a retired judge, and a solicitor. 114 The Minister for Justice and Equality may, at his 111 It was reported in January 2019 that the Committee of absolute discretion, dispense with the conditions for Inquiry had heard two cases in December 2018 and was due naturalisation in cases involving stateless persons, under to hear 38 others in 2019. See Gallagher, ‘Immigrants facing section 16 of the Irish Nationality and Citizenship Act 1956 as revocation of citizenship not entitled to legal aid‘. amended by section 5 of the Irish Nationality and Citizenship

31 IHREC CERD Submission | October 2019 ad hoc system for the recognition of stateless people in Ireland, for example, ʽ by granting permission to remain in Ireland is a State party to circumstances where people fulfil the both the 1954 Convention relevant criteria.115 The State does not collect data specifically on stateless Relating to the Status of people.116 The Commission also notes the Stateless Persons and the potential challenges faced by stateless 1961 Convention on the migrant children. There is a safeguard to ensure that a child born on the island of Reduction of Statelessness. Ireland who is not entitled to citizenship of any other country is an Irish citizen from birth;117 however, this does not benefit stateless children who migrate to Ireland.118

•

The Commission recommends that the State develop a statelessness determination procedure in line with its obligations under international law.

Act 1986. 115 It has been reported that when Ireland has granted a determination of statelessness under the 1954 Convention, the person concerned has been granted leave to remain, see European Migration Network (2016) Statelessness in the EU, p.9. According to the UNHCR, while the 1954 Convention does ‘not explicitly require States to grant a person determined to be stateless a right of residence, granting such permission would fulfil the object and purpose of the treaty’ and that individuals would be granted at least two and preferably five years’ residence. See UNHCR (2014), Handbook on Protection of Stateless Persons, p.52. 116 See Dáil Éireann (10 July 2018), ‘Statelessness determination process’. 117 Section 6(3) of the Irish Nationality and Citizenship Act 1956. 118 This concern has also been documented by the Immigrant Council of Ireland: ‘The Irish Nationality and Citizenship Act 1956 gives the Minister for Justice and Equality the power to dispense with the conditions for naturalisation in cases involving stateless persons. While the 1956 Act provides a safeguard for stateless children born in Ireland, there are significant practical obstacles to accessing that discretionary mechanism in the absence of a specific regime governing statelessness. The provision is of no assistance to stateless children who migrate to Ireland.’ See Immigrant Council of Ireland, Child Migration Matters, p.239.

IHREC CERD Submission | October 2019 32 Section 5 Experiences of Racial Discrimination and Attitudes to Diversity (Articles 2, 5, 7) Discrimination and prejudice groups were born harder working.’122 This on the grounds of race proportion is higher than the average of the ten other western European countries examined in the report (40%), though Through its Human Rights and Equality lower than some individual countries.123 Research Programme with the ESRI, the It was found that 17% of adults born in Commission has produced extensive Ireland believe that ‘some races were born research demonstrating consistent less intelligent.’ Again, this proportion is and significant levels of discrimination higher than the average of the ten other against minority ethnic people in western European countries examined Ireland, as well as troubling attitudes (14%), though some countries registered to particular groups in society.119 substantially higher proportions.124

The research study, Who Experiences Discrimination in Ireland?, found that, compared to ‘White Irish’ respondents, ʽBlack people are three times ‘Black’ people are three times more likely to more likely to experience experience discrimination in access to public services and almost five times more likely discrimination in access to to experience discrimination in access to public services and almost private services such as shops, banks, and five times more likely to housing. ‘Asian’ respondents also report more discrimination in private services.120 experience discrimination in access to private services such Another research study, Attitudes to Diversity as shops, banks, and housing. in Ireland,121 found that ‘just under half of adults born in Ireland believe some cultures to be superior to others. It also found These findings align with other national that 45% believe that some races/ethnic and European reports on the racism and discrimination experienced by minority ethnic groups in Ireland. The CSO published data in July 2019 demonstrating that 119 These include Who Experiences Discrimination in compared to 16.3% of ‘Irish persons’, Ireland? (2017); Attitudes to Diversity in Ireland (2018); 26.7% of persons of other nationalities Discrimination and Inequality in Housing in Ireland (2018); and and 33.1% of ‘persons from non-White Nationality and Ethnicity in the Irish Labour Market (2018). For discussion on the absence of a national action plan against racism in Ireland, see section 3. 120 F. McGinnity, R. Grotti, O. Kenny and H. Russell (November 2017), Who Experiences Discrimination in Ireland? 122 McGinnity et al., Attitudes to Diversity in Ireland, p.50. (IHREC and ESRI), p.36. 123 McGinnity et al., Attitudes to Diversity in Ireland, p.27. 121 F. McGinnity, R. Grotti, H. Russell, and É. Fahey (2018), The average proportion for the ten other western European Attitudes to Diversity in Ireland (IHREC and ESRI). The countries was 40%. The lowest proportion was recorded in report examines data from the European Social Survey The Netherlands, at 12%, and the highest in Portugal at 67%. and, therefore, the results for Ireland are compared with 124 McGinnity et al., Attitudes to Diversity in Ireland, p.26. averages from ten other western European countries The average proportion for the ten other western European (Belgium, Denmark, Finland, France, Germany, The countries was 14%. However, substantially different values Netherlands, Portugal, Spain, Sweden, and the UK) to set it in were recorded, ranging from less than 2% in Sweden to 41% a comparative context. in Portugal.

IHREC CERD Submission | October 2019 34 ethnic backgrounds’ reported experiencing The role of the national media in discrimination in the previous two years. contributing to racism against minority Overall, men continue to report significantly ethnic communities has been criticised, more racist crime, abuse, and discrimination including due to the often negative portrayal than women in Ireland.125 However, the of immigration in Ireland.129 Furthermore, Commission recognises that women concerning the reporting of criminal have different and specific experiences offences, reference is regularly made in of racial discrimination, particularly as the media, including the national public their gender and ethnicity can intersect to service broadcaster RTÉ, to the specific create additional barriers and obstacles nationality of the suspect or accused or the to the enjoyment of their civil, political, fact that they are a ‘foreign national’.130 economic, social, and cultural rights.126 Victims of racism in Ireland report One study that analysed reported racist experiencing both physical and mental health incidents found that the shaming of and issues, including anxiety, depression, and discriminatory behaviour towards people nausea. They also report a lack of confidence of African descent are frequent and highly in occupying public spaces and engaging with visible in Ireland.127 Persons of African strangers, as well as fears for their other family descent living in Dublin have also reported members.131 Such experiences and feelings of experiences of racism and systematic isolation were echoed by participants at our xenophobia, including being targeted in their Be Heard on CERD consultation, including due homes through break-ins, intimidation, and to the lack of awareness and understanding the shouting of racist slurs. Furthermore, among the general public about the racism second-generation minority ethnic Irish experienced by minority ethnic communities. people are reported as experiencing Particular concerns were raised about the particular racism, including being specifically prevalence of silent bystanders in society, targeted with online racial abuse due to described as people who fail to challenge their perceived lack of any ‘biological’ the racism they witness and therefore or ‘ethnic’ connection to Ireland.128 engage in passive discrimination.

The Commission notes the value of victimisation surveys in bridging gaps in 125 L. Michael (July–December 2017), Reports of Racism in Ireland (ENAR Ireland), p.14. 126 The Committee (2000), Discrimination and Prejudice: General Recommendation XXV on Gender-Related Dimensions of Racial Discrimination. (2014), New Irish Families: A Profile of Second Generation 127 L. Michael (2015), Afrophobia in Ireland: Racism Against Children and their Families (Dublin, Trinity College Dublin). People of African Descent, pp.38–39. This research analysed 129 L. Michael, Afrophobia in Ireland, p.8. For further the online reporting of racist incidents. information on the link between editorial decisions and 128 E. Siapera, E. Moreo, and J. Zhou (November 2018), the emergence of online and real-world hate speech and Hate Track: Tracking and Monitoring Racist Speech Online incidents, see section 6 on hate crime and hate speech. (Dublin City University), p.38. The study observes that 130 See for example, A. Phelan (26 August 2019), ‘Taxi driver in certain racially loaded online discourse, ‘Irishness’ is accused of raping passenger in cab granted bail’, The Irish constructed in exclusively White terms and minority ethnic Independent; RTÉ (27 August 2019), ‘Taxi driver appears in groups are often viewed as ‘only Irish in name or paper’. Dublin court on rape charge’; RTÉ (25 January 2019), ‘Gardaí See also, Maynooth University, Wezesha, and Dunglave investigate alleged sexual assault of elderly woman at hospital Associates (2019), Embracing Diversity: How People of African on Christmas Eve’; and RTÉ (21 February 2018), ‘Egyptian man Descent and Service Providers Experience Diversity in Dublin jailed for raping student in Carlow’. 15, p.13 and A. Röder, M. Ward, C. Frese, and E. Sánchez 131 L. Michael, Afrophobia in Ireland, pp.12, 35.

35 IHREC CERD Submission | October 2019 data and highlighting the experiences shops, pubs, and restaurants.134 Other of communities,132 particularly when available research indicates that 90% of supplemented by booster samples of Travellers have experienced discrimination groups traditionally underrepresented or over their lifetime, while 77% experienced excluded from standard national surveys.133 discrimination in the previous year. In particular, they reported experiencing • discrimination from the Gardaí, as well as pub and hotel staff.135 In research carried out The Commission recommends the use with the general population in 2017, 27% of victimisation surveys to increase of respondents agreed with the statement public understanding of the prevalence ‘it is acceptable for Travellers to be refused and impact of racial discrimination in entry to hotels, pubs and shops’ and 35% of Ireland, including the multiple forms of respondents stated that they would avoid discrimination faced by women. a member of the Traveller community.136

Discrimination and prejudice against the Traveller and ʽThere is a demonstrable Roma communities history of chronic racism and discrimination against There is a demonstrable history of the Traveller community in chronic racism and discrimination against the Traveller community in Ireland. The Ireland. Commission-funded report, Who Experiences Discrimination in Ireland?, found that compared to ‘White Irish’ respondents, Thirty-seven per cent of respondents in the Irish Travellers are 22 times more likely to above research137 indicated that they would experience discrimination in accessing avoid a member of the Roma community. private services in general, and 38 times The Commission is also concerned about more likely to report discrimination in the particular prejudices towards the Roma community in Ireland.138 The National Roma Needs Assessment is a recent study

132 For example, the CSO has a Crime and Victimisation survey to provide detailed official information on the incidence of crime and victimisation in the population and 134 McGinnity et al., Who Experiences Discrimination in the attitudes and opinions of the population on the Irish Ireland?, p.36. justice system. See also, UN Office on Drugs and Crime and 135 In total, 481 Travellers took part in this survey. The UN Economic Commission for Europe (2010), Manual on Community Foundation for Ireland (July 2017), B&A Traveller Victimisation Surveys. Community National Survey, pp.86–87. 133 A booster sample deliberately over-represents 136 In total, 1007 adults took part in this survey. The minority groups and reweights data to ensure Community Foundation for Ireland, B&A Traveller Community representativeness at the analysis stage. For a more detailed National Survey, pp.102, 105. discussion of data and integration of minority ethnic groups 137 The Community Foundation for Ireland, B&A Traveller in Ireland see É. Fahey, F. McGinnity, and E. Quinn (2019), Community National Survey, p.105. Data for Monitoring Integration: Gaps, Challenges, and 138 McGinnity et al., Attitudes to Diversity in Ireland, pp. Opportunities (ESRI). vii–viii.

IHREC CERD Submission | October 2019 36 conducted with Roma in Ireland.139 It reported campaign on the level of discrimination high levels of discrimination faced by Roma faced by Travellers and Roma.142 on the street or other public settings (81% of respondents) when accessing social • welfare (84%) and in shops, restaurants, pubs, or other social venues (74%). This report The Commission recommends that the highlighted that Roma women are particularly State implement the recommendations vulnerable to on-street racism, including of the Advisory Committee on the because of their identifiable and traditional Framework Convention for the dress.140 As referenced in section 15 regarding Protection of National Minorities on racial profiling, a 2014 Special Inquiry found addressing the discrimination faced by that two Roma children were removed Travellers and Roma. from their families by An Garda Síochána on the basis that their appearance did not conform to racial stereotypes and physically International Decade for resemble their respective parents.141 People of African Descent

As noted above, there is a growing ʽThere is a growing evidence evidence base regarding the cumulative base regarding the cumulative discrimination and racism experienced by people of African descent, and discrimination and racism particularly women of African descent. experienced by people of African descent, and The Commission notes the State’s indication that dialogue is underway to particularly women of African develop a comprehensive programme for descent. the International Decade for People of African Descent,143 and the holding of a The Commission notes the recent call by public and stakeholder consultation event the Advisory Committee on the Framework in Spring 2019 ‘to involve stakeholders Convention for the Protection of National in the design of a programme of action Minorities that the State take immediate in Ireland’ to mark the Decade.144 This action to launch an awareness-raising dialogue has commenced, however, over four years after the start of the International Decade for People of African Descent. 139 The study conducted interviews using a questionnaire with 108 respondents and gathered basic information for a further 501 Roma household members. For further information on the methodology see, Pavee Point Traveller 142 Advisory Committee on the Framework Convention and Roma Centre and Department of Justice and Equality for the Protection of National Minorities, Fourth Opinion on (2018), Roma in Ireland – A National Needs Assessment. Ireland, p. 11. 140 Pavee Point Traveller and Roma Centre and 143 The Committee, Combined Fifth to Ninth Periodic Department of Justice and Equality, Roma in Ireland – A Reports Submitted by Ireland under Article 9 of the National Needs Assessment, pp.51, 56. Convention, p.25. 141 Department of Justice and Equality (2014), Report of 144 Department of Justice and Equality (3 April 2019), Ms. Emily Logan, Garda Siochána Act 2005 (Section 42) (Special ‘Minister Stanton hosts public and stakeholder consultation for Inquiries relating to Garda Siochána) Order 2013, p.115. the International Decade for People of African Descent’.

37 IHREC CERD Submission | October 2019 • the regular deployment of anti-Semitic tropes online in Ireland, particularly in the The Commission is of the view that the context of anti-immigration discourses.149 State has not given adequate priority to marking the International Decade Another report, Attitudes to Diversity for People of African Descent and in Ireland, has identified the existence recommends that it redouble its efforts of particular prejudices towards the to develop a programme of action to Muslim community.150 Research also ensure the latter part of the Decade is demonstrates that Muslim women report appropriately marked. much higher levels of anti-Muslim hostility than Muslim men, and are particularly at risk of discrimination in locations such Islamophobia and as public transport or restaurants.151 anti-Semitism •

The Commission notes the Committee’s The Commission recommends that acknowledgement of the intersection the State adopt public awareness- between discrimination on the grounds of raising and education measures to religion, and discrimination on the grounds of address discrimination and prejudice, race, and the phenomenon of discrimination including on the grounds of race and targeting ‘persons belonging to certain religion, and to specifically address the ethnic groups who profess or practice a discrimination faced by minority ethnic religion different from the majority, including women. expressions of Islamophobia, anti-Semitism and other similar manifestations of hatred against ethno-religious groups.’145

Research co-funded by the Commission and published in 2018 demonstrated the common use of Islamophobic and anti- Semitic racist discourse in the Irish online sphere.146 The authors observed that such online discourse commonly deployed narratives around terrorism, the ‘clash of civilisations’, and crude sexualisation.147 The authors noted the linkage between Islamophobia and anti-black racism online.148 The authors further observed

149 Siapera et al., Hate Track, p.37. 150 McGinnity et al., Attitudes to Diversity in Ireland, pp. vii–viii. 145 The Committee, General Recommendation No. 35, para. 151 J. Carr (2014), Experiences of Anti-Muslim Racism 6. in Ireland, pp.6–7. Three-hundred and forty-five Muslim 146 Siapera et al., Hate Track, pp.35–38. men and women took part in this research incorporating 147 Siapera et al., Hate Track, p.36. participants from a diverse range of ethno-national 148 Siapera et al., Hate Track, p.37. backgrounds, ages, genders and aspects of Islam.

IHREC CERD Submission | October 2019 38 Section 6 Hate Speech and Hate Crime (Articles 2, 4, 5, 7) The Commission notes Legal framework on the Committee’s guidance incitement to hatred regarding the potential for and hate motivation hate speech to silence the free speech of its victims The Prohibition of Incitement and on the complementary to Hatred Act 1989 relationship between The Prohibition of Incitement to Hatred Act 1989 remains the only legislation combatting hate speech under which hostility on the grounds of and enabling freedom of race, colour, nationality, religion, ethnic or national origin, membership of the 152 expression to flourish. Traveller community, or sexual orientation is currently criminalised in Ireland.153 In keeping with the The Commission notes the State report’s Committee’s approach in reference to the 1989 Act, in particular, General Recommendation its indication that ‘since 2010 there have been 12 cases prosecuted … resulting in No. 35, it is the Commission’s two sentences of imprisonment,’154 The view that the State’s low rate of prosecutions under this Act ‘calls into question the effectiveness and response to hate speech accessibility of these sanctions.’155 The 1989 should not only make use of the criminal law but 153 The 1989 Act criminalises certain behaviour and should also encompass expression that is likely or intended to ‘stir-up’ hatred against a group of persons. Direct abuse levelled at an other policy and regulatory individual on the grounds of a protected characteristic is not necessarily prohibited under the 1989 Act, in the absence of measures to encourage a wider intention, or likelihood, to stir-up hatred. 154 The Committee, Combined Fifth to Ninth Periodic non-discriminatory Reports Submitted by Ireland under Article 9 of the Convention, Due in 2014, para. 65. discourse, to educate the 155 IHREC (June 2014), Submission To The UN Human Rights Committee on the Examination of Ireland’s Fourth public on the harm of hate Periodic Report under the International Covenant on Civil and Political Rights, para. 188. The ineffective operation of the speech, and to ensure that 1989 Act has been attributed to a number of issues that were consistently identified in analysis of the legislation. its extent and impact are One key issue is the apparent reluctance of the Director adequately tracked. of Public Prosecutions to prosecute or grant leave to prosecute complaints made under the Act, with reasons to not seek prosecution attributed to insufficient evidence, definitional difficulties, the role of prosecutorial discretion, and procedural issues. See J. Schweppe and D. Walsh (2008), 152 The Committee, General Recommendation No. 35, Combating Racism and Xenophobia through the Criminal Law: para. 28–29, 45. A Report Commissioned by the National Action Plan Against

IHREC CERD Submission | October 2019 40 Act also appears particularly ill-equipped to Incitement to Hatred Act 1989, in line deal with online hate speech incidents.156 with the recent recommendations of ECRI,158 and including with a view to The European Commission against addressing online incitement to hatred Racism and Intolerance (ECRI) has recently and hate speech. criticised the legislation’s limited scope and has recommended the amendment of the criminal law to include a wider range of expression-based offences.157 Hate motivation in the criminal law

• In the wider criminal justice sphere, Ireland’s criminal laws do not include substantive The Commission is of the view that the hate crime offences nor do they provide Prohibition of Incitement to Hatred for aggravation of crimes on the statute Act 1989 is outdated and inadequate book. Trial judges can take aggravating to effectively address hate speech that factors, including hate motivation, into calls for a response in criminal law. account at sentencing for offences, including assault, criminal damage, and public order offences. The State has • expressed confidence that this approach meets its obligations under CERD159 and The Commission recommends the the European Framework Convention.160 modernisation of the Prohibition of The Commission is concerned, however, that the State’s current reliance on judicial discretion in sentencing places limitations on Racism, pp.100–101. the justice system’s ability to deal with hate 156 The first prosecution dealing with online material crime. While current practice in sentencing concerned the creation of a racist Facebook page in 2009. The page titled ‘Promote the use of knacker babies as shark bait’, in Ireland allows for prejudice motivations targeted the Traveller community. The prosecution failed in to be taken into account by the sentencing the District Court, with the judge not finding evidence beyond court, the court is under no obligation to reasonable doubt that there was intent to incite hatred do so. Moreover, as the State has indicated towards members of the Traveller community. The Court took into account that the accused had only posted on the site in its report to the Committee, the Courts once; however, by the time Facebook acted to have the page Service does not keep data on these factors removed, 644 people had joined the page and many more had viewed it. See PILA (5 October 2011), ‘Irish District Court dismisses Traveller Facebook hate speech case’. 157 ECRI (June 2019), Report on Ireland (Fifth Monitoring 158 ECRI, Report on Ireland (Fifth Monitoring Cycle), p.12. Cycle), p.12. Suggested offences included public incitement 159 The Committee, Combined Fifth to Ninth Periodic to violence and to discrimination and defamation; the public Reports Submitted by Ireland under Article 9 of the expression, with a racist aim, of an ideology that claims Convention, para. 66. the superiority of, or which depreciates or denigrates, a 160 Ireland has indicated to the European Commission group of persons on grounds of their race; the public denial, that ‘motivation can always be considered by the courts.’ trivialisation, justification, or condoning of crimes of genocide, See European Commission (2014), Report from the crimes against humanity, or war crimes; the creation or Commission to the European Parliament and the Council on leadership of a group that promotes racism, support for the Implementation of Council Framework Decision 2008/913/ such a group and participation in its activities; and racial JHA on Combating Certain Forms and Expressions of Racism discrimination in the exercise of one’s public office or (private) and Xenophobia by means of Criminal Law, SWD(2014) 27, occupation. para. 3.4.

41 IHREC CERD Submission | October 2019 when recording the final sentence imposed, circumstance ran contrary to its standards,163 meaning no record is kept of the number, and recommended that the law should be scale, or incidence of criminal sentences ‘amended to provide that racist and other informed by the hate element of the crime.161 hate motivation constitutes an aggravating circumstance for all criminal offences and 164 is taken into account in sentencing.’ This ʽ recommendation reflects the Committee’s Ireland’s criminal laws do recommendation during its last examination not include substantive hate of Ireland that ‘racist motivation [be] crime offences nor do they consistently taken into account as an aggravating factor in sentencing practice provide for aggravation of for criminal offences.’165 The Commission crimes on the statute book. more generally notes the Committee’s commentary on prevention of racial discrimination in the administration and Recent research suggests that, in practice, functioning of the criminal justice system.166 the hate element of a crime is prone to becoming invisible at various stages of • the criminal justice process, from the reporting and investigation of the crime, The Commission is of the view that through to prosecution and sentencing. Ireland’s current approach to hate The research points to the fact that the motivation does not adequately meet bias motivation, due to various obstacles its international obligations.167 encountered, may not reach the sentencing stage of a trial and where it does, it is far from clear that an appropriate aggravation • of sentence is assured.162 This represents a clear challenge to the State’s position The Commission recommends that that judicial discretion in sentencing statutory provision be made for effectively deals with hate crime. aggravation and penalty enhancements

In its recent report on Ireland, ECRI observed that the lack of provision on racist 163 ECRI (2017), General Policy Recommendation No. motivation constituting an aggravating 7 on National Legislation to Combat Racism and Racial Discrimination. 164 ECRI, Report on Ireland (Fifth Monitoring Cycle), p.12. 165 The Committee (4 April 2011), Concluding Observations of the Committee on the Elimination of Racial Discrimination: Ireland, para 19. 161 The Committee, Combined Fifth to Ninth Periodic 166 The Committee (2005), General Recommendation 31 Reports Submitted by Ireland under Article 9 of the on the Prevention of Racial Discrimination in the Administration Convention, para. 66. and Functioning of the Criminal Justice System, para. 4(a). 162 For a comprehensive account of this phenomenon, see 167 The Commission notes that the new Diversity and A. Haynes and J. Schweppe (2017), Lifecycle of a Hate Crime: Integration Strategy 2019–2021 includes a commitment to Country Report for Ireland (ICCL). See also, A. Haynes and develop a mechanism to ensure that the aggravating factor J. Schweppe (2017), ‘The disappearing of hate crime in the of a hate crime is communicated effectively during the Irish criminal justice process’, in A. Haynes, J. Schweppe, criminal justice process to criminal justice partners by An and S. Taylor (eds), Critical Perspectives on Hate Crime: Garda Síochána. An Garda Síochána, Diversity and Integration Contributions from the Island of Ireland (Palgrave Macmillan). Strategy 2019–2021, p.10.

IHREC CERD Submission | October 2019 42 for crimes motivated by hate or further work on the review of the Irish prejudice. legislative landscape and the development of proposals for reform are awaiting the completion of this evidence review. However, • this further work has not been made subject to any clear terms of reference, nor The Commission recommends the to any detailed timeframe for delivery. development of legislative measures for the creation of substantive hate- • motivated criminal offences. The Commission recommends that the State develop and commit to a clear, time-bound action plan for review Current status of review and modernisation of hate crime law and reform initiatives and practice in Ireland to bring it in line with its international obligations, The Commission is concerned that the undertaken in full consultation with State is placing insufficient urgency on groups targeted by hate crime in advancing reform on hate crime in Ireland. Ireland, and with the participation of civil society organisations representing In its report to the Committee, the State them. indicated its intention to conduct a ‘review of the law relating to hate crime and incitement to hatred’, for completion ‘by the end of The Commission notes the emphasis 2018.’168 Separately, the Minister for Justice placed by the Committee on appropriate and Equality indicated in 2018 his intention to training for the judiciary,171 prosecutors, bring forward proposals to address the other and investigators172 in identifying and gaps that have been highlighted in Ireland’s understanding hate motivation. legislative and procedural infrastructure for combatting hate crime.169 Neither the review • nor the proposals have been completed. The Department of Justice and Equality The Commission recommends that has begun an evidence review of hate crime the review include the development legislation in other jurisdictions.170 It appears of appropriate education measures for key actors in the criminal justice system, including the judiciary, 173 168 The Committee, Combined Fifth to Ninth Periodic prosecutors, and investigators. Reports Submitted by Ireland under Article 9 of the Convention, para. 68. 169 Department of Justice and Equality (2018), ‘Statement by Minister Flanagan on hate crime legislation’. The team in the Department of Justice and Equality’s research Commission notes that the Department issued a call for and analysis section. an evidence review of hate crime legislation in 2019. See 171 See for example, The Committee (4 April 2011), Department of Justice and Equality (2019), Request for Concluding Observations of the Committee on the Elimination Tender for Research Services: an Evidence Review of Hate of Racial Discrimination: Ireland, para. 19. Crime Legislation. 172 OSCE (2009), Hate Crime Laws – A Practical Guide, p.36. 170 This review was subject to an unsuccessful public 173 Section 17 of the recently enacted Judicial Council tendering process. It is now being carried out by a research Act 2019 makes provision for a Judicial Studies Committee

43 IHREC CERD Submission | October 2019 Monitoring and recording The Commission notes that the integrity of of hate crime and hate- An Garda Síochána’s system of recording hate crime rests on the officers’ knowledge related incidents and understanding of hate crime and the process for recording incidents on PULSE. The Commission notes that the Committee Concerns have been raised about the extent ‘regards the adoption by States parties of awareness within the Gardaí of what of targets and monitoring procedures constitutes hate crime or a hate-related to support laws and policies combatting incident, how it should be recorded, and racist hate speech to be of the utmost the importance of it being recorded.177 importance.’174 The Commission further notes the emphasis placed by the Committee on systematic data collection in combatting hate speech.175 ʽ...the integrity of An Garda Síochána’s system of Police recording of crime recording hate crime rests on and non-crime incidents the officers’ knowledge and

An Garda Síochána has facilitated the understanding of hate crime recording of crime with a discriminatory and the process for recording motive since 2002 under Garda HQ incidents on PULSE. Directive No 188/2002, which mandated that racist motivations be entered on the Police Using Leading Systems The Garda Síochána Inspectorate has Effectively (PULSE) system.176 reported on deficiencies in systems and processes that hinder the investigation of racist incidents, finding that the 178 that shall ‘facilitate the continuing education and training levels of recording are ‘very low’. of judges with regard to their functions.’ This may be a potential means of providing the judiciary with the requisite skills, knowledge, and training on hate crime. It has been reported that preparatory research is currently underway under the guidance of Chief Justice for the until 2006. See D. McInerney (2017), ‘Policing Racism on the formation of the Judicial Studies Committee, including Island of Ireland’, in A. Haynes, J. Schweppe, and S. Taylor, benchmarking against comparable jurisdictions such as Critical Perspectives on Hate Crime, p.428. In November Scotland. See Law Society Gazette (3 October 2019), ‘“Hit 2015, the recording of crimes with a ‘discriminatory motive’ the ground running” on Judicial Council – Clarke’. For further was reformed, amending both recording categories and the information on the potential role of the Judicial Studies recording process. As part of an update of PULSE 6.8, the Committee, see section 15. five pre-existing recording categories were replaced and 174 The Committee, General Recommendation No. 35, para. extended to eleven categories of discriminatory motives. 47. 177 J. Carr (2017), ‘Recording and Reporting Racist Hate 175 The Committee, General Recommendation No. 35, Crime: Police and Civil Society Responses’, p.373 and A. para. 38. Haynes and J. Schweppe (2017), ‘The disappearing of hate 176 The recording of discriminatory motives occurs at crime in the Irish criminal justice process’, in A. Haynes et al. the point of logging crimes onto PULSE. Prosecutions (i.e. (eds.), Critical Perspectives on Hate Crime. charges or summons) are recorded separately on PULSE 178 Garda Síochána Inspectorate (2014), Crime and linked to the associated crime incident record. However, Investigation and CSO (2018), Review of the Quality of despite its introduction in 2002, it seems that An Garda Recorded Crime Statistics: Based on 2017 Data Provided by An Síochána did not begin to officially compile hate crime data Garda Síochána.

IHREC CERD Submission | October 2019 44 At present, recorded hate crime data definition of ‘hate crimes’182 and ‘non-crime does not attain the standards of quality hate incidents’.183 This strategy also has required for the status of national several objectives focused on improving statistics.179 All recorded crime statistics the identification, reporting, investigation, are currently categorised as ‘Statistics and prosecution elements of hate crime. Under Reservation’ and will remain as For example, it includes commitments to such until the CSO is satisfied that a develop an initial online reporting facility stronger data governance framework is for hate crime; deliver clear guidelines operational in An Garda Síochána and the regarding the identification and recording quality of the data output improves.180 of hate crime and non-crime hate incidents to all Gardaí and Garda staff; develop an In contrast to criminal incidents, currently, IT mechanism to record non-crime hate the PULSE system does not offer a menu incidents; update the Garda PULSE system of flags for reporting prejudice-motivated to introduce an alert mechanism to highlight non-crime incidents. While non-crime hate crimes; and conduct an analysis of incidents can be recorded separately in hate crime trends and patterns.184 the attention and complaints section on PULSE, there is no data retrieval system on • PULSE for prejudice-motivated non-crime incidents. Consequently, these incidents Noting the commitments in the new will only be identified as being prejudice- Diversity and Integration Strategy motivated if the Garda officer dealing with 2019–2021, the Commission the matter manually types a description of recommends the timely comprehensive the incident into the relevant narrative box.181 reform of the PULSE system, including the implementation of a stronger The Diversity and Integration Strategy 2019- governance framework and overall 2021 of An Garda Síochána, published improvements in data collection by in October 2019, introduces a working An Garda Síochána in line with Central Statistics Office standards.

179 The Irish State has not made official statistics on police-recorded hate crime publicly available since the end of 2016. 180 CSO, Review of the Quality of Recorded Crime Statistics. 182 ‘Any criminal offence which is perceived by the victim The Commission notes the recent quality improvement or any other person to, in whole or in part, be motivated proposal shared by the CSO with An Garda Síochána in by hostility or prejudice, based on actual or perceived age, July 2018. The quality proposal outlines key actions to disability, race, colour, nationality, ethnicity, religion, sexual improve the quality of PULSE data for statistical purposes orientation or gender.’ See An Garda Síochána, Diversity and emphasising the need to improve data in respect to Integration Strategy 2019–2021, p.6. relevance, completeness, timeliness, accuracy, as well as 183 ‘Any non-crime incident which is perceived by any coherence and consistency. According to the document, ‘in person to, in whole or in part, be motivated by hostility or order for the CSO to be able to compile statistics in which prejudice, based on actual or perceived age, disability, race, users can have trust, sound data quality principles and colour, nationality, ethnicity, religion, sexual orientation or methodologies must be employed by An Garda Síochána at gender’. See An Garda Síochána, Diversity and Integration the recording stage so as to ensure a high standard of quality Strategy 2019-2021, p6. An Garda Síochána, Diversity and in the underlying administrative data source’ (see p.29). Integration Strategy 2019–2021, p.6. 181 Carr, ‘Recording and Reporting Racist Hate Crime’, 184 An Garda Síochána, Diversity and Integration Strategy p.373. 2019–2021, pp.7–8.

45 IHREC CERD Submission | October 2019 • These mechanisms need to be adequately maintained, updated, and publicised, as well The Commission recommends that as evaluated to assess their effectiveness guidelines and protocols for the in practice.187 The Commission notes that recording of discriminatory motives the new An Garda Síochána Diversity and are developed transparently and made Integration Strategy 2019–2021 includes publicly available. a commitment to facilitate third-party referrals of hate crime from non-government organisations or civil society organisations.188 • Considering the phenomenon of The Commission recommends that underreporting of hate crime and hate members of An Garda Síochána should incidents, the Commission also notes the be equipped to understand, recognise, value of victimisation surveys in bridging the and thoroughly investigate all instances reporting gap.189 of hate crime through dedicated training, both during general training at Garda College and through specialist • modular learning at in-service level, including targeted training for: The Commission recommends that the State consider the establishment of • assisting victims of specific types alternative reporting mechanisms by of hate offences which victims or witnesses can report • accurate, reliable, and timely data hate crime offences, including the recording on PULSE. establishment of third-party reporting mechanisms in partnership with civil society organisations.

Alternative reporting mechanisms

Collaboration with non-police organisations and other third parties can provide safe are recognised as important for disabled people to report hate crime at locations accessible to them. See UK Home 185 spaces to report and access support. Office, Action Against Hate. Third-party schemes can target those groups 187 See Her Majesty’s Inspectorate of Constabulary and most at risk of being victimised and/or who Fire & Rescue Services (2018), Understanding the Difference: are least likely to report crimes to police.186 The Initial Police Response to Hate Crime. 188 An Garda Síochána, Diversity and Integration Strategy 2019–2021, p.7. 189 In the context of hate crimes, victimisation surveys have been identified as providing a better indication 185 In its recent Action Plan, the UK government expressed of the true volume of hate crimes, as well as valuable its support for alternative modes of reporting when stating information about the impact on victims, identifying ‘Giving victims the opportunity to report hate crime without specific communities at risk, providing information about approaching the police directly – for instance to a third party changing patterns of violence, and helping to assess the such as a local charity – has been shown to improve the level of confidence amongst victims in the police and other accessibility of the criminal justice system.’ See UK Home criminal justice agencies. See OSCE Office for Democratic Office (July 2016), Action Against Hate: the UK Government’s Institutions and Human Rights (2014), Hate Crime Data- Plan for Tackling Hate Crime, p.31. Collection and Monitoring Mechanisms: A Practical Guide. See 186 In the UK, for example, third-party reporting centres section 5 for further information on victimisation surveys.

IHREC CERD Submission | October 2019 46 • discourse online in Ireland, ranging from ‘crude’ to ‘coded’ forms of speech, as The Commission recommends the use well as a broader and more generalised of victimisation surveys, which include acceptance of ‘banal’ or ‘casual’ racialised hate crime specific questions, and are discourse.192 In some instances, the research supplemented by booster samples of identified patterns of a shared language groups traditionally underrepresented between Irish online racist speech and the or excluded from standard national racist and identarian language observable surveys. in the United States and Europe, including reference to racist tropes, such as ‘white genocide’ and ‘population replacement’, Policy and regulatory which indicated the operation of activist responses to racism online, racist groups in this sphere. The link between the traditional media’s framing of news in print, and broadcast events and online racist speech was also highlighted in the research, which observed The Commission is of the view that that ‘sensationalist headlines attract […] significant reform to the policy and regulatory a large volume of hateful comments.’193 environment is essential to address the contemporary problem of the circulation of The research further indicates the wide racist and hate speech in the public sphere, range of communities targeted by online both online and offline. The Commission racist speech in Ireland. Anti-immigrant notes in particular, the centrality of Ireland, as and anti-refugee discourses focusing on European host to all major global social media access to welfare and housing are common. and technology companies, the growth and Discourses stereotyping, dehumanising, development of regulation and oversight of and denigrating Roma and Travellers were social media and other online platforms. found to be ‘pervasive’.194 In this connection, the Commission notes the emphasis placed by Traveller representatives during Hate speech online its Civil Society Forum on the specificity of anti-Traveller racism in the online space in Internationally, the majority of hate Ireland and the extent to which members of speech incidents occur online,190 and the public appear willing to express racism there is some evidence to suggest against Travellers in a way that they would not that this is the case in Ireland.191

Research co-funded by the Commission demonstrates the nature of racially loaded 192 Siapera et al., Hate Track, pp.4, 31. The project used insights from civil society and experts in the field of race, racism, and hate speech to build a computational tool that harvests and classifies Facebook and Twitter posts in terms of their probability to contain racially-loaded toxic content, 190 ECRI (2016), ECRI General Policy Recommendation No. generating a dataset that was subsequently analysed in 15 on Combating Hate Speech, p.4. terms of the toxic repertoires it contained, the communities 191 ENAR recorded 125 hate speech incidents in the period targeted, the kinds of people posting, and the events that July–December 2017 and 113 of these occurred online. See trigger racially toxic contents. L. Michael (2018), Reports of Racism in Ireland: 17th+18th 193 Siapera et al., Hate Track, pp.4, 32, 33. Quarterly Reports of iReport.ie, July–December 2017, p.7. 194 Siapera et al., Hate Track, pp.35–36.

47 IHREC CERD Submission | October 2019 the companies themselves.199 The efficacy of notice-and-takedown processes has ʽ 200 Research co-funded by the also been difficult to assess. Recently Commission demonstrates published guidelines from the Organization for Security and Co-operation in Europe (The the nature of racially loaded Tallinn Guidelines) have stressed the need discourse online in Ireland, for clarity and transparency in procedures ranging from ‘crude’ to governing the removal of content.201

‘coded’ forms of speech, as The Law Reform Commission has well as a broader and more recommended the establishment of generalised acceptance of a monitoring and oversight body to regulate the operation of notice-and- ‘banal’ or ‘casual’ racialised takedown processes.202 The Minister for discourse. Communications, Climate Action, and Environment has recently committed to with other minority groups. Islamophobic, introduce an Online Safety Bill to regulate the anti-Black, and anti-Semitic racist discourse content shared on social media platforms was also identified by the research.195 Overall, by ‘setting a clear expectation for service its findings emphasised the importance providers to take reasonable steps to ensure of promoting digital literacy as a means of the safety of the users of their service’ and combatting online hate speech in Ireland.196 establishing an Online Safety Commissioner to oversee the new regulatory framework.203

Social media standards and The Commission notes that these takedown procedures initiatives to better regulate harmful content online are developing in the Notice-and-takedown procedures have emerged as the primary mechanism of self-regulation for social media platforms.197 These procedures have been criticised for 199 House of Commons Home Affairs Committee (2018), being ad hoc in nature,198 and for placing Hate Crime: Abuse, Hate and Extremism Online, p.12. 200 Law Reform Commission (2016), Report on Harmful the primary responsibility to identify Communications and Digital Safety, para. 3.17. Social media hateful content on users rather than on companies have consistently refused to clarify with precision the number of staff or the amount of money they are committing to moderate the content on their platforms. See House of Commons Home Affairs Committee, Hate Crime, 195 Siapera et al., Hate Track, pp.35–38. For further p.15. information on experiences of racial discrimination and 201 OSCE (2019), The Tallinn Guidelines on National attitudes to diversity, see section 5. Minorities and the Media in the Digital Age & Explanatory Note, 196 Siapera et al., Hate Track, p.5. para. 37. 197 These mechanisms have been codified at the European 202 See Law Reform Commission, Report on Harmful level, with the European Commission having agreed in 2016 Communications and Digital Safety. a code of conduct on countering illegal hate speech online 203 Department of Communications, Climate Action, and with Facebook, Microsoft, Twitter, and YouTube. European Environment (2019), ‘Regulation of harmful online content and Commission (2016), Code of Conduct on Countering Illegal the implementation of the revised audiovisual media services Hate Speech Online. directive’. See proposals to introduce a similar regulatory 198 See G. Shannon (2017), Statement to the Oireachtas framework by the UK government at HM Government (UK) Joint Committee on Children and Youth Affairs, p.3. (2019), Online Harms White Paper.

IHREC CERD Submission | October 2019 48 context of a forthcoming revision of the EU • Audiovisual Media Services Directive.204 The Commission recommends that • the State promote and advance digital literacy as a core skill for people of The Commission recommends that all ages to combat prejudicial and the State develop a comprehensive discriminatory content and hate speech regulatory framework to combat online. prejudicial and discriminatory content and hate speech online.

Press and broadcast • The Press Council of Ireland and Office of The Commission recommends that the Press Ombudsman are statutory self- under this framework, the operation regulatory bodies providing oversight of of notice-and-takedown procedures the press (print and online) in Ireland. 205 for removing harmful content online should be subject to codes of practice Principle eight of the Press Council of and transparency concerning the Ireland’s Code of Practice prohibits the prevalence of online hate speech publication of material intended or likely to and the measures being taken by cause grave offence or stir up hatred based internet intermediaries to address on protected characteristics. While referring it. Compliance with the framework to the standards of the Constitution of Ireland should be overseen and enforced by an and the European Convention on Human independent statutory body and should Rights, the Code does not rely on CERD or be promoted by way of effective and other UN human rights instruments.206 proportionate sanctions. Broadcasting is subject to structural and content regulation under the Broadcasting Act 2009.207 The Broadcasting Authority

205 The bodies are recognised in statute under the 204 ‘Directive of the European Parliament and of the Council Defamation Act 2009. amending Directive 2010/13/EU on the coordination of certain 206 The Council may decide not to uphold a complaint for provisions laid down by law, regulation or administrative action breach of the code for a wide range of reasons, including in Member States concerning the provision of audiovisual where the publication concerned has taken or offered media services (Audiovisual Media Services Directive) in to take sufficient remedial action to resolve a complaint. view of changing market realities’. The deadline for the Sufficient remedial action by a publication can include the implementation of the provisions of the Directive is 19 publication of a correction, a clarification or apology, a right September 2020 – see Department of Communications, of reply, or the amendment or deletion of online material. Climate Action, and Environment (2019), Public Consultation Press Council of Ireland & Office of the Press Ombudsman on the Regulation of Harmful Content on Online Platforms and (2014), Code of Practice for Newspapers and Magazines: the Implementation of the Handbook, January 2014, p.4. 207 This regulatory framework operates by way of Revised Audiovisual Media Services Directive: Explanatory a licensing regime overseen by the Commission for Note. Communications Regulation (ComReg), the body that

49 IHREC CERD Submission | October 2019 of Ireland (BAI) monitors compliance by The Commission is of the view that a broadcasters with broadcasting rules. free media plays a fundamental role in The BAI Code of Programme Standards promoting an open, democratic, and equal require that ‘material shall not stigmatise, society.213 The Commission notes that in support or condone discrimination or the modern media environment, a strong incite hatred against people or groups in link can be observed between editorial society in particular on the basis of age, decisions and the emergence of online and gender, marital status, membership of real-world hate speech and incidents.214 the Traveller community, family status, The Commission is of the view that in sexual orientation, disability, race, light of this link, the special protection nationality, ethnicity or religion.’208 afforded to the press regarding freedom of expression,215 and the Committee’s guidance in General Recommendation ʽ No. 35,216 it is imperative that media a free media plays a professionals adhere to journalistic ethics fundamental role in and codes of practice, and ensure that promoting an open, such codes of practice are responsive to the modern media environment. democratic, and equal society. •

The Commission recommends that the The BAI considers complaints relating to State encourage the media to update broadcasts209 and publishes the decisions of their codes of professional ethics and its compliance committee.210 Hate speech press codes to reflect the challenges in broadcasting has been the subject of of the modern media environment complaint.211 When the BAI upholds a where the circulation of prejudicial complaint of a breach of its codes and and discriminatory content and hate rules, it ‘does not have any power to award speech are concerned, and to explicitly to any party, costs or expenses.’212 incorporate the principles of CERD and other fundamental human rights standards. grants broadcasting licences. Under section 39(1)(d) of the Broadcasting Act 2009, television and radio broadcasters must not broadcast ‘anything which may reasonably be regarded as causing harm or offence, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State.’ Complaints Process & the Broadcasting Authority of Ireland, 208 Principle 5 of the BAI Code of Programme Standards. p.24. 209 The viewer or listener must first raise the complaint 213 European Broadcasting Union (13 September 2019), directly with the broadcaster. ‘Public service media critical to healthy democracies’. 210 These decisions are published on the BAI’s website, 214 Siapera et al., Hate Track, p.25. www.bai.ie. 215 Article 40.6.1°(i) of the Constitution of Ireland provides 211 The BAI informed ECRI that in the last five years, nine that the State must seek to ensure the media (the ‘organs complaints were submitted invoking principle 5 of the BAI of public opinion’) can exercise their ‘rightful liberty of Code of Programme Standards. Three of these complaints expression’, provided they ‘shall not be used to undermine were upheld as breaches of the code. See ECRI, ECRI Report public order or morality or the authority of the State.’ on Ireland, para. 38. 216 The Committee, General Recommendation No. 35, para. 212 BAI (2017), A Guide for Listeners & Viewers to the 39.

IHREC CERD Submission | October 2019 50 •

The Commission recommends that the State encourage appropriate training for editors and journalists as to the nature and dynamics of hate speech to avoid the publication and inappropriate framing of news and editorial content that is prejudicial, discriminatory, or triggers hate speech or incidents.

•

The Commission recommends that compliance with regulatory mechanisms aiming to prevent hate speech, such as codes of conduct, should be supported by way of dissuasive sanctions for breach of their provisions.

51 IHREC CERD Submission | October 2019 Section 7 Participation in Public Life and Representation in Decision-Making (Article 1) The Commission notes the Political participation

Committee’s Concluding The Commission notes that participation Observations regarding the as voters and as candidates in the local election process is based on residency participation of minority and is not restricted to Irish citizens.219 All groups in Irish public life,217 Irish and British citizens who live in Ireland and are aged 18 years or over are entitled and that several current to vote in a general election, while Irish government policies aim to citizenship is a requirement to be elected to Dáil Éireann (lower house of Parliament).220 increase the participation of minority groups in Analysis of data from the 2016/2017 electoral register and the 2016 Census indicates that political processes at the 13% of the population ordinarily resident in local and national level, and the State were of nationalities other than Irish and over 18 years of age (and therefore 218 in public life generally. eligible to register to vote in local elections). This group accounted for only 5% of people on the electoral register.221 Possible barriers to registering to vote include access to information about voting rights and the complexity of the registration process, including electoral registration forms.222

Fifty-three ‘naturalised/non-Irish citizen’ candidates contested the 2019 local elections, with eight being elected.223 This 217 See The Committee (4 April 2011), Concluding Observations of the Committee on the Elimination of Racial represents a welcome increase on the 2014 Discrimination: Ireland, para 14. local elections.224 However, analysis suggests 218 The National Traveller and Roma Inclusion Strategy 2017–2021 sets the objective that ‘Traveller and Roma people should be supported to participate in political processes at local and national levels’, and that ‘Traveller 219 Department of Housing, Planning and Local and Roma organisations should be resourced to support and Government (2018), ‘How members of local authorities are facilitate political engagement and leadership in the Traveller elected’, pp.3–5. and Roma communities.’ See Department of Justice and 220 For further information, see Voting in Ireland. Equality, National Traveller and Roma Inclusion Strategy 221 McGinnity et al., Monitoring Report on Integration 2018, 2017–2021, Action 132, p.42. The National Strategy for p.77. Women and Girls 2017–2020 aims to secure ‘greater levels 222 Doras Luimní (2019), Submission: Modernising the of participation by Traveller and Roma women in public life’ Electoral Process. by ‘continuing to fund and support the National Traveller 223 In 2014, 31 naturalised/non-Irish citizens ran, two Women’s Forum, Mincéirs Whiden, and relevant local of whom were elected. See A. Kavanagh (2019), The 2019 community Traveller and Roma projects’. See Department Local Elections: A Geographer’s Overview. Kavanagh’s of Justice and Equality, National Strategy for Women and operational definition of ‘naturalised/non-Irish citizen’ does Girls 2017–2020, Action 3.11, p.54. Further, The Migrant not disaggregate naturalised Irish citizens from non-citizen Integration Strategy makes the commitment that ‘migrants residents but does exclude British citizens. will be supported and encouraged to register to vote and 224 McGinnity et al., Monitoring Report on Integration 2018, to exercise their franchise.’ See Department of Justice and p.75. It has been noted that if the proportion of non-Irish Equality, The Migrant Integration Strategy, action 59, p.32. candidates in the 2014 elections reflected the resident

53 IHREC CERD Submission | October 2019 that some 86 people would need to have However, the Commission notes that been elected in the 2019 local elections for despite a commitment in the National this group’s political representation at local Action Plan Against Racism 2005–2008 to government level to be proportionate.225 consider the reservation of a seat in Seanad The Commission further notes the low Éireann for a cultural and minority ethnic levels of Traveller and Roma participation representative,229 due consideration of such a as electoral candidates; it is estimated measure is not apparent in the government’s that just five of the almost 2,000 people current Seanad reform agenda.230 to contest the 2019 local elections were members of the Traveller community.226 Minority ethnic women face additional barriers to political participation, including due to The most recent general election took place language and gender-based discrimination, in February 2016. One of the 166 members sexist stereotyping, political inexperience, elected to Dáil Éireann is a naturalised Irish limited access to campaign funding, work national.227 Groups representing minority commitments, and the lack of childcare ethnic communities have called for positive provisions.231 The Commission notes the measures to be taken to improve the successes that have been achieved following diversity of representation in Parliament.228 the introduction of gender quotas in party candidate selection.232 However, women population as recorded in Census 2011, 218 non-Irish candidates would have contested the election, rather than 31. See E. Quinn (2017), ‘Active Citizenship’ in A. Barrett, of Migrant Integration/Department of Justice & Equality on the F. McGinnity and E. Quinn (eds.) (2016), Monitoring Report State’s Draft Combined 5th 6th & 7th Report in Response to the on Integration (ESRI and the Department of Justice and Recommendations of the United Nations Committee on the Equality), pp.80–81. Elimination of Racial Discrimination, p.2. 225 See A. Kavanagh (2018), New Irish (Non-Irish/UK 229 Department of Justice, Equality, and Law Reform (2005), Nationals) Candidates Contesting the 2019 Local Elections. Planning for Diversity: The National Action Plan Against Racism Kavanagh argues that ‘Non-Irish nationals currently account 2005–2008, measure 9.2.1, p.147. for 11.3% of the Irish population based on the most recent 230 In April 2019, the government considered the Report of Census of 2016, with this percentage falling to 9.1% when the Implementation Group on Seanad Reform 2018. See Dáil UK nationals are taken out of this group. If the proportion of Debates (11 June 2019), Seanad Reform. The Implementation successful non-Irish/UK nationals local election candidates Group’s terms of reference were to consider and report on the at the May 24th [2019] local elections was similar to this implementation of the recommendations made in the Report level (i.e. 9.1%), there would be 86 “New Irish” Councillors of the Working Group on Seanad Reform 2015, including ‘to (based on a total number of 949 City and County Council consider whether any specific variations on [the Working members)’. Group’s] recommendations were desirable or necessary.’ 226 See the first witness statement made by Ms Kathleen However, neither the Working Group nor the Implementation Sherlock in the Seanad Public Consultation Committee (9 Group made recommendations regarding measures to ensure July 2019), Travellers Towards a More Equitable Ireland Post- minority ethnic community representation in the Seanad, Recognition: Discussion. despite the fact that ‘many of the submissions made to the 227 McGinnity et al., Monitoring Report on Integration 2018, Working Group contained suggestions that An Taoiseach p.76. Articles 16.1.1° and 18.2 of the Constitution of Ireland should be mindful of unrepresented minorities … in making stipulate that only Irish citizens are eligible to be elected to his/her nominations’ to the Seanad. See Report of the Working Parliament in a general election. Group on Seanad Reform 2015, p.29. 228 See Seanad Public Consultation Committee, Travellers 231 Coppieters Foundation and the Unrepresented Nations Towards a More Equitable Ireland Post-Recognition. Martin and Peoples Organisation (2019), Minority Women in Politics: Collins and Rosaleen McDonagh of Pavee Point and Kathleen The Political Participation and Representation of Minority and Sherlock of Mincéirs Whiden called for seats in Seanad Migrant Women in Europe, pp.101–105. Éireann (upper house of Parliament) to be reserved for 232 There was a 40% increase in the number of women Traveller candidates. See also, Traveller Visibility Group Cork parliamentarians (TDs) elected in the first election where (January 2018), Submission to the Office for the Promotion gender quotas applied, the 2016 general election. See F.

IHREC CERD Submission | October 2019 54 from politically underrepresented groups, action measures to enable the political such as minority ethnic communities, participation of minority ethnic continue to remain marginalised. In groups, such as the introduction of particular, concerns have been raised about reserved seats in Parliament and local the low levels of political participation by government. Traveller women and migrant women.233 The Commission has recommended that capacity training and mentoring • workshops be provided for migrant women and Traveller women to redress The Commission recommends that their underrepresentation in politics.234 the State introduce a quota system for minority ethnic candidates in • political party candidate selection, as a complementary measure to the The Commission recommends introduction of gender quotas.237 that the government’s proposed Electoral Commission235 be mandated to promote more equal political • participation of groups, including minority ethnic communities.236 The Commission recommends that special measures to support engagement in public and political life • should be designed and implemented with the active participation of the The Commission recommends that the communities they concern and should State undertake additional positive include targeted interventions for specific minority ethnic groups, for example, women. Buckley (2016), ‘The 2016 Irish election demonstrated how gender quotas can shift the balance on female representation’. The Electoral (Amendment) (Political Funding) Act 2012 Standards in public office introduced the quotas, providing that in order to secure State funding, political parties are required to ensure that and political discourse 30% of their election candidates are female. 233 IHREC (January 2017), Ireland and the Convention on the Elimination of All Forms of Discrimination Against Women, The Commission notes that 30 independent p.73. UN experts have collectively raised their 234 IHREC, Ireland and the Convention on the Elimination of All Forms of Discrimination Against Women, p.74. 235 In July 2019, the government announced the commencement of work on the establishment of an Electoral Commission. The proposed body will bring 237 The Commission notes reports in 2018 that the together several electoral functions in an independent Minister of State with special responsibility for local statutory body and will also include a new research and government and electoral reform, Deputy John Paul Phelan, advisory function. See Department of Housing, Planning, was working on a bill requiring political parties to fill 40% of and Local Government (19 July 2019), ‘Government approval their nominations with women, migrants, and people from for the establishment of an electoral commission’. ethnic minorities under a new local election quota system. 236 IHREC (2019), ‘Response to the Public consultation on a This bill has not been advanced to date. See E. Loughlin, regulatory impact analysis on the establishment of an electoral ‘Quota system targets migrants, women and minorities’, The commission’, pp.9–12. Irish Examiner.

55 IHREC CERD Submission | October 2019 alarm about the recent increase in public the prejudicial and discriminatory comments figures dehumanising migrants and other made by a member of the Irish Parliament at minority groups, including for their political a recent public meeting on the opening of gain.238 It wishes to alert the Committee a direct provision centre, when he referred to its concerns about political discourse to refugees from Africa as ‘economic in Ireland that may serve to exclude migrants’ seeking to ‘sponge off the minority groups from public life.239 system here in Ireland.’242 The Commission is of the view that while political debates should be free and open, they should not be ʽ characterised by a political discourse that Thirty independent UN is of a discriminatory and racist nature.243 experts have collectively raised their alarm about the Considering the Committee’s recognition of the important role to be played by public recent increase in public officials in rejecting hate speech,244 the figures dehumanising State should take measures to address the migrants and other minority use of discriminatory rhetoric in political discourse by public officials, election groups, including for their candidates, and elected representatives. political gain. In this regard, appropriate measures In 2017, a local government councillor and include codes of conduct that prohibit member of the main party in government the use or endorsement of prejudicial disseminated anti-Muslim messages on and discriminatory discourse by public social media.240 In the 2018 Irish presidential officials and elected representatives.245 election contest, a candidate publicly While the current Civil Service Code of denied that Travellers have a separate Standards and Behaviour prohibits the ethnic identity and stated that Travellers use of such speech by public officials,246 are ‘basically people camping in someone else’s land.’241 The Commission also notes

242 S. Murray (13 September 2019), ‘Taoiseach calls on Galway TD to withdraw remarks made at direct provision centre public meeting’, The Journal. 238 Office of the High Commissioner for Human Rights (23 243 The Committee of Ministers of the Council of Europe September 2019), ‘Hate speech: UN experts make joint call for defines hate speech as ‘all forms of expression which spread, action by states and social media firms’. incite, promote or justify racial hatred, xenophobia, anti- 239 For further commentary on hate crime and hate Semitism or other forms of hatred based on intolerance, speech, see section 6. including: intolerance expressed by aggressive nationalism 240 C. Finn (8 September 2017), ‘Fine Gael councillor to and ethnocentrism, discrimination and hostility against face disciplinary hearing over comments about Islam’, The minorities, migrants and people of immigrant origin.’ See Journal. The party sanctioned the councillor by removing Council of Europe (1997), Recommendation No. R(97) 20 him from the whip for a period of 12 months, meaning he of the Committee of Ministers to Member States on ‘Hate was not allowed to represent the party in any political forum Speech’. during this time. See J. Carr (2017), ‘Islamophobia in Ireland: 244 The Committee (2013), General Recommendation National Report 2017’, in E. Bayrakli and F. Hafez (eds.) No.35: Combatting Racist Hate Speech, CERD/C/GC/35, (2018), European Islamophobia Report 2017. para. 37. 241 See H. McGee (27 October 2018) ‘How the presidential 245 ECRI (2016), General Policy Recommendation No. 15, campaign went wrong for four out of six candidates’, The Irish p.7. Times. 246 The code requires public officials ‘to ensure non-

IHREC CERD Submission | October 2019 56 the Commission notes that the codes Regarding the use of discriminatory rhetoric of conduct in place for officeholders and in election campaigns, the Commission is of members of Parliament do not do so.247 the view that this can be addressed by the development and promotion of guidance To avoid using prejudicial and discriminatory on standards for political candidates, speech, and to challenge its use by others, as has been recommended by regional public officials must be able to recognise it human rights248 and equality bodies249 and the prejudice of which it is symptomatic, and as has been done in the UK.250 In a express sympathy and support for its targets, submission to government, the Commission and articulate its harm to society as a whole. has recommended that the proposed Electoral Commission be mandated to • develop and promote such guidance and

The Commission recommends that codes of conduct for public officials and election candidates should clearly 248 See ECRI (2015), General Policy Recommendation No.15 on Combating Hate Speech, para 6. ECRI recommends prohibit the use or endorsement that States encourage political parties to sign the Charter of prejudicial and discriminatory Of European Political Parties For A Non-Racist Society. By discourse. These codes should provide adopting the Charter, political parties commit ‘to refuse for appropriate sanctions for breach of to display, to publish or to have published, to distribute or to endorse in any way views and positions which stir up or their conditions. invite, or may reasonably be expected to stir up or to invite prejudices, hostility or division between people of different ethnic or national origins or religious beliefs, and to deal firmly with any racist sentiments and behaviour within its • own ranks.’ 249 See Equinet (2019), Recommendation on Promoting The Commission recommends Equality and Combatting Discrimination in Election Campaigns. that public officials and elected The recommendation calls on political parties and representatives be provided candidates to refrain from using discriminatory language or hate speech and from proposing discriminatory laws and with training in equality and non- policies. discrimination to ensure they are 250 The Commission notes the Committee’s equipped to recognise and respond recommendation to the UK that comprehensive measures effectively to prejudicial and be adopted ‘to combat racist hate speech and xenophobic political discourse […] and ensure that public officials not discriminatory discourse and hate only refrain from such speech but also formally reject speech. hate speech and condemn the hateful ideas expressed, so as to promote a culture of tolerance and respect.’ See The Committee (2016), Concluding Observations on the Combined Twenty-First to Twenty-Third Periodic Reports of the United Kingdom of Great Britain and Northern Ireland, CERD/C/GBR/CO/21-23, para 16(d). The Equality and discriminatory language is used in all communications, Human Rights Commission in the UK has since developed both internal and external, including display material and and promoted voluntary principles on standards in political documents in electronic form.’ See SIPO (2008), Civil Service discourse for political candidates. These principles call on Code of Standards and Behaviour, para. 10. political parties to commit to ensuring that their members 247 See SIPO (2003), Code of Conduct for Office Holders, refrain from conduct that generates hostility, discrimination, as drawn up by the Government pursuant to section 10(2) of prejudice, or division; is abusive or denigrating; promotes the Standards in Public Office Act 2001; SIPO (2002), Code stereotypes; or uses false, erroneous, or misleading of Conduct for Members of Dáil Éireann other than Office information. See Equality and Human Rights Commission Holders; and SIPO (2002), Code of Conduct for Members of (2017), ‘Voluntary principles on standards for political Seanad Éireann. discourse’.

57 IHREC CERD Submission | October 2019 standards for political candidates during election and referendum campaigns.251

•

The Commission recommends that the government’s proposed Electoral Commission be mandated to uphold standards in political discourse during election and referendum campaigns, with a specific focus on discourse relating to minority ethnic groups.

251 IHREC, Response to the Public Consultation on a Regulatory Impact Analysis on the Establishment of an Electoral Commission, p.6.

IHREC CERD Submission | October 2019 58 Section 8 Education (Articles 5(d)(vii), 5(e)(v), 7) The Commission notes the minority ethnic children, constitutional provision educational outcomes, that the State recognises staff and school diversity, and affirms the natural bullying, and the curriculum and imprescriptible rights in place. It also examines of all children and shall, as the particular barriers faced far as practicable, by its by minority ethnic groups laws protect and vindicate in accessing further and those rights (emphasis third-level education. added).252 One such right, as expressly recognised Primary and secondary by the Constitution, is education the right to education. The State has committed Access to and participation to providing free primary in education education and to ensuring The Education (Admissions to Schools) Act 2018 permits 25% of the places in a school that children receive a certain that is oversubscribed to be reserved for minimum education.253 children or grandchildren of past pupils.254 The Commission has repeatedly called In light of the constitutional on the State to ensure equity of access to publicly funded schools.255 It is concerned right to education, this that the application of this past-pupil section considers the criterion will act as a barrier, particularly for children from Traveller families and families extent to which the primary of migrant origin in accessing education and secondary education and may result in their segregation in system is inclusive and culturally respectful to 254 See section 62(10)(b) of the Education Act 1998, as all, considering access amended by the Education (Admission to Schools) Act 2018. 255 See IHREC (November 2016), Observations on issues, the experiences of the Education (Admission to Schools) Bill 2016 and Mary Stokes v Christian Brothers High School Clonmel & Ors (December 2012). The Committee on the Rights of the Child also referred to this as a discriminatory policy in 2016. See Committee on the Rights of the Child, Concluding 252 See Article 42A(1) of the Constitution of Ireland. Observations on the Combined Third and Fourth Periodic 253 See Article 42 of the Constitution of Ireland. Reports of Ireland, p.14.

IHREC CERD Submission | October 2019 60 specific schools.256 Research has indicated National Traveller and Roma Inclusion a pattern of segregation with students Strategy 2017–2021 includes several from minority ethnic groups being more specific actions relating to improving likely to attend large urban schools that are the educational outcomes of Traveller less likely to be oversubscribed and have a and Roma children.260 However, separate concentration of students who experience achievement data is not collected for these socio-economic disadvantage.257 children, so it is not possible to establish the impact of any measures adopted.261 • Low levels of participation among the The Commission recommends that Traveller and Roma community in early the use of a connection with a former childhood education, including due to a student of the school as a criterion in lack of awareness about the availability of the admission of a child is prohibited.258 free preschool, can result in educational disadvantage before the children enter primary school.262 Census 2016 The Committee on the Rights of the demonstrates that the level of education Child highlighted in 2016 that it is among Travellers continues to remain ‘deeply concerned about the structural well below that of the general population discrimination against Traveller and Roma throughout school, with just 13.3% of children, including as regards their access girls from the Traveller community being to education’ and it called on the State to educated to upper secondary school undertake concrete and comprehensive or above compared with 69.1% of the measures to address this.259 The new general population. In 2016, nearly 6 in 10 Traveller men (57.2%) had left school at primary level, in sharp contrast to the general population (13.6%).263 Despite the 256 IHREC (January 2017), Submission to the United Nations educational disadvantage experienced, the Committee on the Elimination of Discrimination Against Women on Ireland’s combined sixth and seventh reports, Commission notes regressive measures pp.85–87 and IHREC (16 November 2016), ‘“Segregation relating to specialised supports such Out” of Traveller, immigrant children & children of people with disabilities from schools through preferential access for others should be prohibited’. In 2011, approximately seven out of ten Traveller children (67.3%) lived in families where the mother 260 Department of Justice and Equality, National Traveller had either no formal education or a primary education only. and Roma Inclusion Strategy 2017–2021 and Department of See Department of Children and Youth Affairs (2016), State Education and Skills (2017), DEIS Plan 2017 – Delivering Equal of the Nation’s Children, p.22. Opportunity in Schools. 257 For example, 25% of children whose mothers 261 Government of Ireland (October 2019), 16th National migrated from Africa are reported as attending the most Report on the Implementation of the European Social Charter, disadvantaged schools, compared to 9% of children of Irish- pp.95–96. born mothers. M. Darmody, F. McGinnity, and G. Kingston 262 ECRI, Report on Ireland (fifth monitoring cycle), p.24 (October 2016), ‘The experiences of migrant children in and D. Watson, O. Kenny, and F. McGinnity (2017), A Social Ireland’, pp.182–183. Portrait of Travellers in Ireland (ESRI), p.6. 258 For an overview of the previous recommendations by 263 CSO, Census of Population 2016 – Profile 8: Irish the Commission in this area, see IHREC, ‘Segregation Out’ Travellers, Ethnicity and Religion. See also, Watson et al., A and IHREC (24 May 2011), ‘Increase diversity in Irish schools to Social Portrait of Travellers in Ireland, pp.31, 34. In a recent meet human rights obligations’. survey with the Traveller community, 37% of respondents 259 Committee on the Rights of the Child, Concluding had left school at primary level and only 16% had completed Observations on the Combined Third and Fourth Periodic their Leaving Certificate. The Community Foundation for Reports of Ireland, p.16. Ireland, B&A Traveller Community National Survey, pp.89, 115.

61 IHREC CERD Submission | October 2019 as the discontinuation of the Visiting The National Traveller Women’s Forum Teacher Service for Travellers in 2011.264 has highlighted that reduced timetables have been used for prolonged periods for Traveller children who are on a waiting list for psychological assessments and supports.267 ʽLow levels of participation among the Traveller and Research has also highlighted school attendance and completion rates as an issue Roma community in early for the Roma community,268 with service childhood education, providers calling for additional supports including due to a lack and resources to be put in place.269 The inadequate and overcrowded nature of the of awareness about the accommodation that many families are availability of free preschool, living in has been identified as impacting can result in educational on the participation of Roma children in school.270 Furthermore, many Roma disadvantage before the children face significant financial barriers to children enter primary school. education and are often deemed ineligible for supports, such as the Back to School The Commission is very concerned about Clothing and Footwear Allowance, due to the emerging and consistent reports of the use of reduced timetables for Traveller children, including as a disciplinary measure or in response to challenging behaviour education’, The Irish Times. The Commission notes the when there is a lack of learning supports and recent commitment from the Minister for Education and resources available.265 This measure involves Skills that new guidelines should be in place by the beginning schools reducing children’s attendance at of 2020 to ensure that school pupils will only be subject school to as little as 30 minutes or a few to reduced timetables in exceptional cases. However, the failure of the guidelines to address the issue of Travellers hours per day in the absence of appropriate being disproportionately affected by reduced timetables has monitoring and guidelines from the been highlighted. See Department of Education and Skills Department of Education and Skills.266 (23 September 2019), ‘Minister for Education and Skills invites education partners to give views on proposed guidelines on reduced timetables’, and Joint Committee on Education and Skills (24 September 2019), Interim Report on Reduced Timetables: Minister for Education and Skills. 264 ECRI, Report on Ireland (Fifth Monitoring Cycle), p.24 267 Joint Committee on Education and Skills, Interim and Department of Education and Skills (22 March 2018), Report on the Committee’s Examination on the Current Use of Submission to the Joint Committee on Education and Skills on Reduced Timetables, p.14. Barriers to Education Facing Vulnerable Groups, pp.7–8. 268 In the 2016/2017 academic year, 1,323 pupils in 265 Barnardos (2018), Barriers to Education Facing primary school indicated that they were of Roma ethnic or Vulnerable Groups, p.2; Joint Committee on Education cultural background. Note, the level of non-response or ‘no and Skills (26 March 2019), Traveller Education: Discussion consent’ response to the question on ethnicity was close and Joint Committee on Education and Skills (June 2019), to 30%. N. Tickner (February 2017), Interesting Facts – First Interim Report on the Committee’s Examination on the Current Look at Data from POD, 2016/2017. Use of Reduced Timetables, pp.10, 15. 269 Pavee Point Traveller and Roma Centre and 266 Barnardos, Barriers to Education Facing Vulnerable Department of Justice and Equality, Roma in Ireland – A Groups, p.2; Joint Committee on Education and Skills, National Needs Assessment, p.113. Interim Report on the Committee’s Examination on the 270 Pavee Point Traveller and Roma Centre and Current Use of Reduced Timetables, p.6; K. Holland (13 Department of Justice and Equality, Roma in Ireland – A May 2019), ‘Children on “reduced timetables” being denied National Needs Assessment, p.114.

IHREC CERD Submission | October 2019 62 the Habitual Residence Condition (HRC).271 born in Eastern Europe, Asia, and Africa.273 ‘Children from immigrant families’ also The Commission notes that the experience greater difficulties when Department of Education and Skills transitioning to second-level education, has confirmed the establishment of a and are less likely to have large groups of two-year pilot programme, to address friends and are more socially isolated than the gap in educational outcomes for their Irish peers.274 Parents, young people, Traveller and Roma children.272 and education providers participating in a recent study identified language as the • biggest educational issue, including due to the inadequate resourcing of English The Commission recommends that language support.275 The number of targeted educational supports must English language support teachers was cut be available for Traveller and Roma significantly during the economic recession, children from the early years and and they have not been reinstated in throughout school, including through the intervening period.276 Teachers have the timely evaluation of the proposed reported particular language difficulties pilot programme and the restoration among children whose mothers were born of the Visiting Teaching Service for in Eastern Europe (40% having difficulties), Travellers. Asia (36%) and to a lesser extent, children whose mothers were born in Africa (24%).277

• •

The Commission recommends the The Commission recommends the introduction of appropriate safeguards consistent provision of additional to monitor the use of reduced English language supports for children timetables and to ensure that they and families who require it. are not used in place of the provision of appropriate supports in any circumstances. Concerning children in the asylum process, as of September 2019, 1,677 children were

In Irish primary schools, there are significant gaps in the reading proficiency between children whose mothers were born in 273 M. Darmody et al., ‘The experiences of migrant children in Ireland’, p.181. Ireland and those whose mothers were 274 E. Smyth (2017), Off to a Good Start? Primary School Experiences and the Transition to Second-Level Education (Growing Up in Ireland, ESRI), pp.30, 37, 41. 275 M. Ní Raghallaigh, K. Smith, and J. Scholtz (September 271 For further information on the HRC, see section 2019), Safe Haven: The needs of refugee children arriving in 9. Children’s Rights Alliance (2019), Report Card 2019, Ireland through the Irish Refugee Protection Programme – An pp.120–121 and Pavee Point Traveller and Roma Centre Exploratory Study, pp.46–48. and Department of Justice and Equality, Roma in Ireland – A 276 K. Bielenberg (24 May 2017), ‘Migrants need more help National Needs Assessment, pp.110–111. with English’, The . 272 The Committee, Combined Fifth to Ninth Periodic 277 F. McGinnity, M. Darmody, and A. Murray (September Reports Submitted by Ireland under Article 9 of the 2015), Academic Achievement among Immigrant Children in Convention, p.9. Irish Primary Schools (Working Paper No. 512), p.8.

63 IHREC CERD Submission | October 2019 residing in direct provision centres and 278 children in emergency accommodation 278 ʽ centres across Ireland. Living in such The unavailability of accommodation can have a particularly appropriate spaces to study negative impact on children’s educational and complete homework has attendance, engagement, and experience, including due to their poor physical or mental also been identified as an health, low self-esteem, exhaustion, and issue in a consultation carried 279 feelings of isolation. The unavailability of out with children living in appropriate spaces to study and complete homework has also been identified as an direct provision. issue in a consultation carried out with children living in direct provision.280 Protection Programme and are living in emergency reception and orientation The Commission is particularly concerned centres (EROCs). Schools in EROCs are about the lack of educational access for not recognised by the Department of children in emergency accommodation Education and Skills and, according to the centres, including due to the temporary OCO, this makes it much more difficult for and remote nature of the accommodation them to access the additional supports and the lack of information provided needed.282 It also means that such schools to families about registering for a are not subject to inspections by the school place.281 In February 2019, the Department, although measures are Commission met with families living in an being adopted to address this issue.283 emergency accommodation centre and was informed that none of the children • were attending school or preschool. The Commission recommends the The Ombudsman for Children’s Office introduction of additional support (OCO) has expressed its concern about services to ensure that children in the provision of education for children who the asylum process are placed in local arrived in Ireland under the Irish Refugee mainstream schools without delay, regardless of whether they are in emergency accommodation.284

278 Department of Justice and Equality (24 September 2019), Direct Provision Data and Dáil Éireann Debate (1 October 2019), International Protection. 279 Irish Primary Principals Network (21 February 2019), ‘Schools becoming a safe haven for Ireland’s 4,000 homeless children’. This issue was also raised at the Commission’s Civil Society Forum on 27 May 2019. 282 Ombudsman for Children (20 February 2019), ‘Equal 280 Department of Children and Youth Affairs (2015), education for refugee children’. Report of DCYA Consultations with Children and Young People 283 Ní Raghallaigh et al., Safe Haven, pp.44–45. Living in Direct Provision. 284 A September 2019 report has highlighted that the 281 Irish Refugee Council (July 2019), The Reception Department of Education and Skills and the Irish Refugee Conditions Directive: One Year On, pp.58–59 and C. Thomas Protection Programme are putting in place provision to (5 May 2019), ‘“He has no one to talk to”: Concerns raised ensure that children attend on-site EROC schools for no around potential lack of schooling for 86 children of asylum longer than three months, at which point they will transfer to seekers’, The Journal. local schools. See Ní Raghallaigh et al., Safe Haven, p.54.

IHREC CERD Submission | October 2019 64 Diversity in education has welcomed commitments by the State to establish more multidenominational The significant changes in the demographic schools,290 it shares the Committee’s makeup of Irish society during the reporting concerns about the slow progress to date.291 period are reflected in the diversity of In the 2017/2018 academic year, 95.8% of students attending Irish schools. However, primary schools in Ireland had a religious there is a diversity gap between the patron. In 4 of 26 counties in Ireland, there student and teacher populations in Ireland, is no alternative to denominational primary with over 99% of entrants to primary school provision.292 In 2017, 48.3% of post- teacher education identifying as ‘White primary schools had a Catholic ethos, while Irish Settled’.285 Furthermore, only 2% of 42.5% were interdenominational293 and secondary school teachers come from 5.5% were multidenominational.294 Overall, minority ethnic backgrounds.286 It has there is no clear, long-term plan as to how been reported that teachers who qualified the State’s targets on the divestment abroad face several administrative barriers, and patronage of schools will be met.295 as well as other difficulties in accessing employment.287 The Commission welcomes Furthermore, religious teaching continues the introduction of the Migrant Teacher to be included across other subjects Project in 2017 as an important step throughout the school day due to the in addressing these issues. It provides integrated nature of the curriculum.296 information, advice, and training to teachers who have qualified outside of Ireland, to help them to continue their profession in Irish primary and post-primary schools.288 welcomed by Irish human rights and equality commission’. 290 IHREC, Report to UN Committee on Economic, Social and Cultural Rights on Ireland’s Third Periodic Review, p.87. As recommended by the Commission, 291 The Committee (4 April 2011), Concluding Observations the Education (Admissions to Schools) of the Committee on the Elimination of Racial Discrimination: Act 2018 gives effect to the principle Ireland, p.6. The Committee on the Rights of the Child raised similar concerns in 2016 and called on the State to that no child should be given preferential expeditiously undertake concrete measures to significantly access to a publicly funded school based increase the availability of non-denominational or multi- on their religion. This is with due regard to denominational schools. See Committee on the Rights of the particular requirements of children of the Child, Concluding Observations on the Combined Third and Fourth Periodic Reports of Ireland, p.14. 289 minority faiths. While the Commission 292 In 2017/2018, 90% of all primary schools remained under the patronage of the Catholic Church and 6% were run by minority religions. See Children’s Rights Alliance, Report Card 2019, pp.19–20. 285 M. Heinz and E. Keane (2018), ‘Socio-demographic 293 According to the Department of Education and Skills, composition of primary initial teacher education entrants in an inter-denominational school is under the patronage or Ireland’, Irish Educational Studies, 37(4), pp.523–543. trusteeship of more than one religious faith community. See 286 A. McMahon (10 September 2019), ‘The changing face Department of Education and Skills, Diversity of Patronage. of teaching in Ireland’, The Irish Times. 294 Information provided by the Department of Education 287 McMahon, ‘The changing face of teaching in Ireland’. and Skills on 24 April 2019. 288 This project was established by the Marino Institute 295 Children’s Rights Alliance, Report Card 2019, p.18. of Education with the support of the Department of Justice 296 Children’s Rights Alliance, Report Card 2019, p.22. In and Equality. While 140 people applied to enrol, the course its observations on the Education (Admissions to School) could only accommodate 40 people. For more information, Bill 2015, the Commission recommended that a legislative see https://www.mie.ie/en/Research/Migrant_Teacher_ amendment should require schools to have regard to Project/. providing information in relation to religion in an objective, 289 IHREC (9 May 2018), ‘Proposals to end “baptism barrier” critical, and pluralistic manner that avoids indoctrination.

65 IHREC CERD Submission | October 2019 • Article 7 of CERD highlights the important role of teaching, education, culture, and The Commission recommends information in the promotion of interethnic increased diversity in the provision understanding and tolerance.301 While the of primary and secondary schools Commission supported the development within educational catchment areas of the Yellow Flag Programme,302 it is throughout the State.297 concerned that issues relating to race, prejudice, and cultural diversity are still not adequately addressed within teacher During the Commission’s recent education programmes and the policies consultations on CERD, the issue of racist and curriculum in Irish schools.303 The bullying in schools was highlighted.298 While initial teacher education programmes for the crucial role of teachers in challenging primary and secondary level have inclusive such bullying was referenced, there were education as a mandatory element.304 also calls for the issue of racism within However, the Oireachtas Joint Committee the teaching profession to be addressed. on Education and Skills has called for In particular, both Traveller and Roma ongoing in-service teacher education on children are significantly more likely to ‘how to practice equality and inclusion for have negative experiences in school, vulnerable groups.’305 Furthermore, the including experiences of bullying, racism, Advisory Committee on the Framework and discrimination, and this can result in Convention for the Protection of National them hiding their identity or leaving school Minorities has highlighted the poor early.299 In recent research conducted with the Traveller community, 40% of respondents indicated that either they or their children 301 The Committee, General Recommendation No. 35, p.3. had been bullied at school due to their 302 The Yellow Flag programme is focused on supporting Traveller identity; 76% of respondents primary and secondary schools to become more inclusive of also reported that Traveller culture is all cultures and ethnicities, celebrate diversity, and challenge racism and discrimination. See IHREC and Irish Traveller 300 not visible in the school curriculum. Movement (2015), Intercultural Training for Yellow Flag Schools. 303 Issue raised at the Commission’s Be Heard on CERD consultation on 30 March 2019. As an example, See IHREC, Report by the Irish Human Rights and Equality young people have highlighted the lack of reference in Commission to the UN Committee on the Rights of the Child on the curriculum to African history and the significant lack Ireland’s Combined Third and Fourth Periodic Reports, p.29. of knowledge among the public about Africa. See also, Ní 297 For an overview of the previous recommendations by Raghallaigh et al., Safe Haven, p.49. the Commission in this area, see IHREC, ‘Segregation Out’ 304 Department of Education and Skills, Submission to the and IHREC, ‘Increase diversity in Irish schools to meet human Joint Committee on Education and Skills, pp.7–8. rights obligations’. 305 Joint Committee on Education and Skills (May 298 A recent report has also noted incidents of racist 2019), Report on Education Inequality & Disadvantage and bullying and name-calling (such as ‘ISIS’) in school settings. Barriers to Education, p.27; K. Lynch (March 2018), Written See Ní Raghallaigh et al., Safe Haven, p.66. Submission to the Joint Oireachtas Committee on Education 299 See Pavee Point Traveller and Roma Centre and and Skills: Barriers to Education Facing Vulnerable Groups, p. Department of Justice and Equality, Roma in Ireland – A vii. Furthermore, despite policy commitments to provide National Needs Assessment, p.53; Pavee Point (April 2019), anti-racist and intercultural training and professional Submission to the Joint Committee on Education and Skills on development for teachers, it was recently highlighted in the the Current Use of Reduced Timetables; and Watson et al., A Seanad that these measures are not being implemented. Social Portrait of Travellers in Ireland, p.4. See Seanad Public Consultation Committee, Travellers 300 The Community Foundation for Ireland, B&A Traveller Towards a More Equitable Ireland Post-Recognition: Community National Survey, pp.89, 115. Discussion.

IHREC CERD Submission | October 2019 66 knowledge and appreciation among the that several Irish universities have recently majority of the population about the become designated ‘Universities of history and culture of Irish Travellers.306 Sanctuary’ for efforts made to include asylum seekers and refugees. This • initiative offers a small number of financial scholarships and other supports to The Commission recommends students living in direct provision.309 the introduction of mandatory programmes on promoting However, the ongoing barriers faced by understanding and combatting racism migrants, refugees, and asylum seekers and on Traveller history and culture307 who wish to pursue education or training for inclusion in the school curriculum in Ireland include the lack of availability and initial and continuous teacher of affordable childcare and transport, education programmes. the uncertainty or short-term nature of their visa or residential status, the lack of recognition of their existing qualifications, • and the limited availability of beginner or upskilling English language classes.310 The Commission recommends the inclusion of specific actions in existing Concerning access to further and third- anti-bullying programmes targeting level education, the operation of the racially motivated bullying. current system can also present financial and administrative barriers for students from migration, refugee, and asylum- Further and third-level seeking backgrounds.311 Firstly, accessible education and training information on the types of education open to these groups, including information on grants and financial assistance available, The Commission notes that Ireland’s National Skills Strategy 2025 has a specific focus on active inclusion to support participation in education and training 309 At the time of writing, NUI Galway, Dublin City University, University of , University College Dublin, by disadvantaged and underrepresented University College Cork, and Athlone Institute of Technology groups.308 The Commission also welcomes had ‘sanctuary designation’ while Maynooth University is pursuing a similar status. Trinity College Dublin is also offering a similar scholarship programme. See O. Murnaghan (19 September 2019), ‘NUI Galway becomes a University of Sanctuary’. 306 Advisory Committee on the Framework Convention 310 Spiritan Asylum Services Initiative (SPIRASI) (2018), for the Protection of National Minorities, Fourth Opinion on Barriers to Education Facing Vulnerable Groups and R. Mooney Ireland, p.20. and C. O’Rourke (July 2017), Barriers to Further Education and 307 The Commission notes that the Traveller Culture and Training with Particular Reference to Long Term Unemployed History in Education Bill 2019, introduced by the Private Persons and Other Vulnerable Individuals, pp.17, 20, 39. These Member Colette Kelleher TD, provides for the inclusion issues were also raised at the Commission’s Be Heard on of Traveller culture and history in the State curriculum. It CERD consultation on 30 March 2019 and the Civil Society was passed by the Seanad on 16 October 2019 and has Forum on 27 May 2019. progressed to Dáil Éireann. 311 This is recognised by the Department of Education and 308 Department of Education and Skills (January 2016), Skills. See Department of Education and Skills, Submission to Ireland’s National Skills Strategy 2025, p.72, Objective 5. the Joint Committee on Education and Skills, pp.9–10.

67 IHREC CERD Submission | October 2019 is poorly distributed.312 Access to the attention that prospective students with Free Fees Initiative is subject to criteria of a status under the 2015 Act are being nationality or immigration status, along denied support in practice, on the basis with an ordinary residence requirement that their documentation does not align of three out of five years preceding with the regulations in place.316 There are entry to third-level education.313 also reports that since the introduction of the 2015 Act, asylum seekers granted The Department of Education and Skills leave to remain are no longer eligible also introduced the Pilot Student Support for financial support under the Student Scheme in 2015 to support school leavers Universal Support Ireland scheme.317 who are in the international protection system to access further and higher Furthermore, despite the introduction education. The Commission welcomes of specific initiatives including the that the Department has recently lowered Higher Education Access Fund, the the eligibility criteria for this scheme, participation of the Traveller community requiring applicants to have spent three in further and third-level education years in the education system as opposed remains comparatively low;318 167 to five years as was previously required.314 Travellers held a third-level qualification However, the impact of the scheme in in 2016, up from 89 in 2011.319 previous years was significantly limited due to the restrictive interpretation of the Concerning training opportunities, there eligibility requirements. By 2018, only five is no nationally collected data on the people had been granted support from a participation of minority ethnic groups total of 59 applicants.315 For students who in apprenticeships.320 Such opportunities do not meet the eligibility requirements for can be particularly important for refugee these initiatives, including undocumented young people due to the gaps in their students, the high cost of fees would education and the difficulties they can be widely prohibitive. The provision of face in accessing third-level education.321 student financial support continues A recent review of the apprenticeship to be underpinned by the Refugee Act programme reported that 85% of 1996, despite the introduction of the International Protection Act 2015. It has been brought to the Commission’s 316 This issue was raised at the Civil Society Forum on 27 May 2019. See also, the Student Support Act 2011. 317 The SUSI grant scheme is the main financial support 312 SPIRASI (2018), Barriers to Education Facing Vulnerable scheme for students. See E. O’Kelly (14 September Groups. 2019), ‘Refugee Council critical of asylum seeker education 313 For further information, see the ‘Higher Education restrictions’, RTÉ. Authority’. 318 Department of Education and Skills, Submission to 314 E. O Kelly (4 June 2019), ‘Criteria eased for asylum the Joint Committee on Education and Skills, p.7. See also, seekers to attend third level’, RTÉ. The Commission had Seanad Public Consultation Committee, Travellers Towards a previously highlighted this issue in 2017. See IHREC, More Equitable Ireland Post-Recognition: Discussion. Submission to the United Nations Committee on the 319 CSO, Census of Population 2016 – Profile 8: Irish Elimination of Discrimination Against Women on Ireland’s Travellers, Ethnicity and Religion. Combined Sixth and Seventh Reports, p.87. 320 SOLAS (November 2018), ‘Review of pathways to 315 Irish Refugee Council (28 November 2018), ‘IRC participation in apprenticeship’, p.3; National Youth Council of Education Fund highlights barriers in access to further Ireland (June 2019), NYCI Pre-Budget Submission 2020, p.12. education for people seeking asylum’. 321 Ní Raghallaigh et al., Safe Haven, p.57.

IHREC CERD Submission | October 2019 68 apprentices in 2018 were young men under • 25 years of age. There were no examples cited by participants of apprentices with The Commission recommends a Traveller background and only a few that the State introduce practical known cases of apprentices with a migrant supports to increase the accessibility background. A lack of information and of apprenticeships to people from guidance was identified as a disadvantage minority ethnic groups, including the to prospective apprentices, particularly adoption of specific measures for where they have no contact in the women. community to support them in identifying opportunities and navigating the system.322

•

The Commission recommends that the State consider implementing a policy similar to the Pilot Student Support Scheme to facilitate undocumented people’s access to third-level education.323

•

The Commission recommends that all measures introduced to support participation in further education and third-level institutions are evaluated in line with the Public Sector Equality and Human Rights Duty to ensure their accessibility to minority ethnic groups and address any remaining administrative and financial barriers

322 SOLAS, ‘Review of pathways to participation in apprenticeship’, pp.3, 5. Note: the Action Plan to Expand Apprenticeship and Traineeship in Ireland 2016–2020 commits to the implementation of the recommendations of this review immediately. See Department of Education and Skills (August 2017), Access Plan to Expand Apprenticeship and Traineeship in Ireland 2016–2020, p.18. 323 The Commission previously made this recommendation to CEDAW. See IHREC, Submission to the United Nations Committee on the Elimination of Discrimination Against Women on Ireland’s Combined Sixth and Seventh Reports, p.87.

69 IHREC CERD Submission | October 2019 Section 9 Employment and Economic and Social Life (Articles 5(e)(i), 5(e)(iv)) This section highlights the Employment Permit holders will be granted immigration permission with an automatic labour market discrimination right to work is also welcome.325 However, faced by minority ethnic labour market discrimination in Ireland is a consistent issue and, as discussed groups in Ireland and the earlier in this submission, it demonstrates structural and other barriers troubling attitudes to particular groups in society.326 Travellers, Roma, and people they face in accessing decent of African descent experience significant work, including the particular barriers to accessing employment.

issues faced by asylum The Commission-funded research report, seekers. It also examines Who Experiences Discrimination in Ireland?, found that, compared to ‘White Irish’ the obligation on the State respondents, Travellers are almost ten times to ensure the protection more likely to experience discrimination in seeking work.327 In 2016, the unemployment of the economic, social, rate for Travellers was 80.2%, compared to and cultural life of minority 12.9% for the general population. Census 2016 also highlighted that only 10.1% of ethnic communities. Traveller women and 12.6% of Traveller men list their principal economic status as ‘at work’.328 In recent research conducted with 481 Travellers, 43% indicated that they had experienced discrimination on ʽTravellers, Roma, and people the grounds of their identity when seeking to access employment. Twenty per cent of African descent experience of respondents reported their previous significant barriers to experience of hiding their identity during accessing employment. a recruitment process, such as changing their address.329 Furthermore, the National Labour market

discrimination 325 The Critical Skills Employment Permit is designed to attract highly skilled individuals into the State to fill high- demand vacancies (for example, in the ICT sector), where The Commission notes that the Migrant the required skills are not readily available in the Irish/EEA Integration Strategy 2017–2020 includes labour market. See Department of Justice and Equality (6 several actions targeting increased March 2019), ‘Ministers Flanagan and Humphreys announce employment and pathways to work.324 The change to immigration arrangements for spouses and partners of critical skills employment permit holders’. recent announcement by the government 326 See section 5. that spouses and partners of Critical Skills 327 McGinnity et al., Who Experiences Discrimination in Ireland?, p.35. 328 CSO, Census of Population 2016 – Profile 8 Irish Travellers, Ethnicity and Religion. 324 Department of Justice and Equality, The Migrant 329 The Community Foundation for Ireland, B&A Traveller Integration Strategy 2017–2020, pp.27–29. Community National Survey, p.91.

71 IHREC CERD Submission | October 2019 Roma Needs Assessment found that only 17% of Roma respondents were in ʽ employment, and 79% felt that they had Travellers are almost been discriminated against in getting a job.330 ten times more likely to experience discrimination in Research funded by the Commission has demonstrated that Black people also seeking work. experience particularly high rates of labour market discrimination and disadvantage These studies reflect the2018 Monitoring in Ireland.331 The 2018 study, Ethnicity and Report on Integration, which reports that the Nationality in the Irish Labour Market, found employment rate of ‘African nationals’ is 45%, that, in comparison to ‘White Irish’ people, compared to an average of 70% for other Black people of Irish nationality were twice minority national groups.334 The employment as likely to experience discrimination when rate of African women is 38%, 17% below the seeking employment and 3.4 times as likely to average female employment rate in Ireland.335 experience discrimination in the workplace. While discrimination in the recruitment Black people of other nationalities were five process has been identified as a significant times more likely to experience discrimination contributing factor, the former exclusion of when seeking employment, and over 2.5 asylum seekers from the labour market and times more likely to experience discrimination the existence of workplace racism against in the workplace.332 Furthermore, the report, African people are also barriers to accessing Who Experiences Discrimination in Ireland?, employment and career progression.336 The reported that women are almost twice Commission welcomes the commitment as likely as men to report discrimination in the Migrant Integration Strategy in the workplace, including in relation to 2017–2020 to examine unemployment pay and promotion.333 The Commission among jobseekers of African origin.337 The is concerned about the particular and Commission also welcomes the recent cumulative discrimination that minority appointment of a Diversity and Inclusion ethnic women may face in the Irish labour Lead in the Public Appointments Service. market, including women of African descent.

334 McGinnity et al., Monitoring Report on Integration 2018, pp.25–26. 330 Pavee Point Traveller and Roma Centre and 335 P. J. O’Connell (2018), Why Are So Few Africans at Work Department of Justice and Equality, Roma in Ireland – A in Ireland? Immigration Policy and Labour Market Disadvantage, National Needs Assessment, pp.51, 75. p.7; McGinnity et al., Monitoring Report on Integration 2018. 331 F. McGinnity, R. Grotti, S. Groarke, and S. Coughlan 336 McGinnity et al., Monitoring Report on Integration 2018; (2018), Ethnicity and Nationality in the Irish Labour Market, P. O’Connell and O. Kenny, ‘Employment and Integration’, (IHREC and ESRI), p.36; McGinnity et al., Who Experiences in Barrett et al. (eds.) (2016), Annual Monitoring Report on Discrimination in Ireland?, p.35. Integration; G. Kingston, P. O’Connell, and E. Kelly (2013), 332 McGinnity et al., Ethnicity and Nationality in the Irish Ethnicity and Nationality in the Irish Labour Market: Evidence Labour Market. The CSO also published data in July 2019 from the QNHS Equality Module 2010; G. Kingston, F. demonstrating that 14.4% of ‘non-Irish persons’ and 19.8% McGinnity, and P. O’Connell (2015), ‘Discrimination in the of ‘persons from non-White ethnic backgrounds’ reported Labour Market: Nationality, Ethnicity and the Recession’, experiencing workplace discrimination in Ireland. See CSO (04 Work, Employment and Society, 29(2), pp.213–223; and L. July 2019), Equality and Discrimination: Quarter 1 2019. Michael, Afrophobia in Ireland, pp.25–28. 333 McGinnity et al., Who Experiences Discrimination in 337 Department of Justice and Equality, The Migrant Ireland?, p.33. Integration Strategy 2017–2020, p.28.

IHREC CERD Submission | October 2019 72 • indicates that, in practice, difficulties in obtaining recognition in Ireland of The Commission recommends that qualifications acquired abroad can give rise to the State take concrete measures situations of under-employment and over- to address discrimination in the qualification.342 The over-qualification rate for workplace, including in relation to migrant workers in Ireland is 41%, compared recruitment, pay, and promotion. to 29% for workers born in Ireland.343 Structural barriers to ʽ accessing the labour market ...difficulties in obtaining recognition in Ireland of

Several structural barriers also impede qualifications acquired abroad access to and participation in the labour can give rise to situations of market for minority ethnic groups. In most under-employment and over- cases, civil service employment is not open to people from outside the European qualification. Economic Area (EEA) which represents a significant barrier to labour market Furthermore, a lack of familiarity with the integration. More generally, there is a lack job culture and employment system in of representation of people from minority Ireland can be an issue, with participants ethnic groups across the public sector.338 at the Commission’s Civil Society Forum highlighting the need for employment The recognition of qualifications acquired orientation courses for asylum seekers abroad is also an issue.339 A European and migrants.344 The high cost of childcare directive on the recognition of foreign in Ireland and the inequitable access to qualifications only applies to people from childcare facilities for people living in rural the EU, and there are often lengthy and areas is also a particular challenge faced complicated procedures in place.340 Quality by women from minority ethnic groups and Qualifications Ireland operates a seeking to access the labour market.345 system for the recognition of vocational skills accredited in other countries, and the State has recently committed to promoting this role more widely.341 However, research Integration Strategy 2017–2020, p.28. 342 McGinnity et al., Ethnicity and Nationality in the Irish Labour Market, p.72. 343 OECD and the EU (2015), Indicators of Immigrant Integration 2015: Settling In, pp.110–111. 338 Department of Justice and Equality, The Migrant 344 See also, European Commission (2016), ‘Challenges Integration Strategy 2017–2020, pp.4, 40 and C. Murphy, L. in the labour market integration of asylum seekers and Caulfield, and M. Gilmartin (2017), Developing Integration refugees’, (Luxembourg: EEPO Publications Office of the Policy in the Public Sector: A Human Rights Approach. EU). 339 Department of Justice and Equality, The Migrant 345 The Commission previously raised this issue with Integration Strategy 2017–2020, p.40. CEDAW. See IHREC, Submission to the United Nations 340 D. Toomey (2015), ‘Employment Rights for Migrant Committee on the Elimination of Discrimination Against Workers in Ireland: Towards a Human Rights Framework’, Women on Ireland’s Combined Sixth and Seventh Periodic International Migration & Integration, 36, p.257. Reports, pp.94–95. See also, Committee on Economic, 341 Department of Justice and Equality, The Migrant Social, and Cultural Rights (2015), Concluding Observations

73 IHREC CERD Submission | October 2019 • Access to the labour market for asylum seekers The Commission recommends that the State consider opening civil service employment to migrants from outside In response to the 2017 Supreme Court the European Economic Area. judgment in NHV v The Minister for Justice and Equality,348 the State introduced a new scheme for labour market access for • international protection applicants.349 The Commission acted as amicus curiae (friend The Commission recommends that of the court) in the case and submitted the State target the recruitment of that the right to work, guaranteed in Article minority ethnic groups in the public 40.3.1 of the Constitution of Ireland, sector. extended to applicants for international protection residing in Ireland. The scheme in place provides permits for employment • and self-employment that are valid for six months and renewable. To be eligible, The Commission recommends international protection applicants that the State introduce a formal must have been awaiting a first instance recognition process for the systematic recommendation on their protection assessment and recording of application for nine months or more.350 education, skills, and work experience gained abroad, facilitating the transfer As of July 2019, 3,993 applications have of qualifications into domestic been made for permission to work, equivalents as appropriate.346 of which 2,665 have been granted.351 Based on the number of employment returns received by the Department of • Justice and Equality,352 of those granted permission, approximately 48% have The Commission recommends that the State disseminate accessible information and educational materials Market for Applications for International Protection, p.19. to people who migrated to Ireland 348 NHV v Minister for Justice and Equality & Ors [2017] on the employment system and the IECA 86. In that case, the Supreme Court held that, in administrative requirements in place.347 circumstances where there is no time limit on the asylum process, the absolute ban on asylum seekers seeking employment is unconstitutional. 349 See Department of Justice and Equality (2018), Information Booklet: Labour Market Access for International on the Third Period Report of Ireland, UN Doc. E/C.12/IRL/ Protection Applicants. The Scheme’s launch coincided with CO/3, para. 23; and Irish Congress of Trade Unions (2016), Ireland opting into the Reception Conditions Directive Who Cares? Report on Childcare Costs & Practices. (recast) (2013/33/EU). 346 This recommendation has also been made by the 350 Per Article 15, Reception Conditions Directive (recast) Organisation for Economic Co-operation and Development. (2013/33/EU). See OECD (2018), Working Together for Local Integration of 351 Direct Provision Data (25 June 2019), Direct Provision Migrants and Refugees and OECD (2016), Making Integration Data. Work: Refugees and Others in Need of Protection. 352 Required by Regulation 14(3) of the European 347 See also, IHREC (March 2018), Access to the Labour Communities (Reception Conditions) Regulations 2018.

IHREC CERD Submission | October 2019 74 ‘worked at some point’, though the volume • or nature of the work is not clear.353 The Commission is of the view that measures for access to the labour market for asylum seekers must be ʽ...international protection effective in practice, sufficient in their scope to provide meaningful applicants are facing access to employment and safeguard continuing barriers in against potential exploitation and effectively accessing discrimination.358 employment. • While the Commission welcomed354 the launch of this scheme, it is concerned The Commission recommends that the at reports that international protection State conduct a review of the scheme for applicants are facing continuing barriers in labour market access for asylum seekers effectively accessing employment. These to identify and address the ongoing include the lack of employer awareness of administrative barriers, including access their entitlement to work, the deterring to banking services and driving licence influence of the permit’s temporary nature,355 applications. barriers to accessing banking services,356 as well as exclusion from access to the driving licence application process.357 The Commission notes that new standards and guidance recommending earlier access to the labour market for asylum seekers are currently being developed. The UN High Commissioner for Refugees (UNHCR) has 353 Irish Refugee Council, The Reception Conditions recommended that access to the labour Directive: One Year On, p.21. market be granted no later than six months 354 IHREC (6 June 2018), ‘Human Rights and Equality after the date of lodging an application for Commission welcomes scheme to grant access to the labour international protection. It noted359 that such market for applicants for international protection’. 355 Irish Refugee Council, The Reception Conditions a limit would align with the standards set out Directive: One Year On, p.21. in the Asylum Procedures Directive (recast), 356 S. Pollack (17 September 2018), ‘Employer doubts which imposes a maximum timeline of six preventing asylum seekers from entering workforce’, The Irish months on processing an asylum claim.360 Times. The Commission recently successfully represented a refugee from Syria at the WRC in a case against a bank for breach of the Equal Status Acts 2000–2015, alleging that they refused to open a bank account for him on the ground of his Syrian nationality. The WRC ordered the bank to pay 358 IHREC (2018), ‘Access to the labour market for applicants compensation of €4,000 to the man. The Commission for international protection’, p.10. understands that this is not an isolated incident, with similar 359 UNHCR Bureau for Europe (2015), Annotated Comments incidents being experienced by both refugees and asylum to Directive 2013/33/EU of the European Parliament and Council seekers. See IHREC (9 April 2019), ‘Syrian refugee wins equal of 26 June 2013 Laying Down Standards for the Reception of status case for refusal of bank account’. Applicants for International Protection (Recast). 357 The Commission is advising and representing several 360 Directive 2013/32/EU of the European Parliament and individuals at the WRC with regard to the ongoing exclusion the Council of 26 June 2013 on common procedures for of asylum seekers from eligibility to apply for driving licences. granting and withdrawing international protection (recast),

75 IHREC CERD Submission | October 2019 • mapping should include recognition of skills acquired formally and informally, without the The Commission recommends that, need for reliance on formal documentation in line with emerging standards and of qualifications or work experience.362 Such UNHCR guidance, applicants for an approach should also be accompanied international protection be granted by other integration measures, including access to the labour market no later language learning, career counselling, than six months after the date of and upskilling opportunities.363 lodging an application. •

Officials have indicated that there are The Commission recommends that an no studies available on the skillset of audit of the skills, qualifications, and people currently in the protection system labour market profile of the current and have been unable to provide an cohort of international protection estimate of the likely scale of access to applicants be carried out to ensure the labour market that may be achieved effective access to the labour market. through the interim scheme.361

Designing a process that ensures effective • access to the labour market requires access to data on the profile, qualifications, The Commission recommends that and skillsets of the current cohort of the State support the development international protection applicants. of a national labour market activation Provisions for access to employment must, programme, in collaboration with therefore, be underpinned and informed professional and trade associations, by clear analysis of the likely labour market focused on ensuring that international prospects of the current cohort of asylum protection applicants can retain and seekers resident in the State to ensure that further develop their qualifications, effective access is not undermined by any experience, and skills.364 limitations imposed. This early competence

Article 31(3). As referenced in section 13, Ireland has not opted in to this Directive and is therefore not bound by 362 Refugees and asylum seekers often face difficulties it. However, the International Protection Act 2015 places in the academic validation process due to their lack of a particular importance on the elapsing of six months documentation. See OECD (2018), ‘Working together for in the consideration of an asylum claim. Section 39(5) the local integration of migrants and refugees’, (Paris: OECD of the Act provides that an asylum seeker is entitled to Publishing). seek information from the IPO on the likely timing of a 363 See OECD (2017), ‘Finding their way: labour market recommendation on their application in the event that such integration of refugees in Germany’, (Paris: OECD a recommendation cannot be made within six months. Publishing). 361 Officials indicated this in response to questions 364 The Commission notes the operation of The Open posed at an information session on the right to work for Doors Initiative, a collaboration between Irish employers, international protection applicants held by the Department with the support of NGOs, focused on supporting people of Justice and Equality, Department of Business, Enterprise, with a disability, refugees, and asylum seekers, and long- and Innovation, and the Department of Employment Affairs term unemployed people to access employment. For more and Social Protection in Dublin on 31 January 2018. information, see https://www.opendoorsinitiative.ie/.

IHREC CERD Submission | October 2019 76 Accessing decent work ʽ In addition to the barriers faced in Reports indicate a concerning accessing employment, minority ethnic prevalence of undocumented groups are often confronted with issues in the workplace such as precarious people and workers on contracts, a lack of progression, unequal employment permits in treatment, and exploitation.365 sectors where there is a

Reports indicate a concerning prevalence high incidence of low pay of undocumented people and workers on and exploitation, including employment permits in sectors where domestic work, the food and there is a high incidence of low pay and exploitation, including domestic work, accommodation industry, and the food and accommodation industry, cleaning services. and cleaning services.366 The current employment permit system, which links inspections, as employers are not subject an individual worker to one employer, has to clear sanctions while undocumented been criticised as it places employees workers face the risk of deportation.370 It is at risk of becoming undocumented or estimated that 33% of all undocumented deported if they leave exploitative work.367 workers are domestic workers, including caregivers and homecare providers.371 The Commission is particularly concerned about the treatment of women from minority The Commission notes that the majority ethnic groups in the workplace. Research of eligible occupations listed under the has highlighted that migrant women are State’s Critical Skills Employment Permit overrepresented in the care and domestic include information and communication work sectors, with many women working in technologies professionals and professional vulnerable employment conditions.368 There engineers and technologists.372 Men is no system for the inspection of labour currently outnumber women in these standards in private household settings.369 professions due to the ongoing occupational Furthermore, the issue of domestic segregation in Ireland.373 The list of workers who have become undocumented ineligible occupations to obtain a work is not adequately addressed in labour permit includes a wide range of care work occupations, including domestic work.374

365 D. Toomey, ‘Employment rights for migrant workers in Ireland’, pp.249–263 and MRCI (2015), Workers on the Move: Past Lessons and Future Perspectives on Ireland’s Labour 370 MRCI (2010), Ending the Race to the Bottom, p.2. Migration. 371 MRCI (2014), Ireland is Home: An Analysis of the Current 366 MRCI, Workers on the Move. Situation of Undocumented Migrants in Ireland. 367 MRCI, Workers on the Move, p.12. 372 Department of Business, Enterprise, and Innovation, 368 MRCI (2015), Migrant Workers in the Home Care Sector: Critical Skills Employment Permits. Preparing for the Elder Boom in Ireland. 373 CEDAW (September 2016), Combined Sixth and 369 For further information, see IHREC, Submission to the Seventh Periodic Reports of States Parties Due in 2016: Ireland United Nations Committee on the Elimination of Discrimination - Annex, p.8. See also, Department of Justice and Equality, Against Women on Ireland’s Combined Sixth and Seventh National Strategy for Women and Girls 2017–2020, p.29. Periodic Reports, p.91. 374 Department of Business, Enterprise, and Innovation,

77 IHREC CERD Submission | October 2019 • poverty rate in Ireland disproportionately affects children from Traveller, Roma, and The Commission recommends that refugee backgrounds.377 The government protections for domestic workers has failed to meet its national targets are strengthened, including through to reduce poverty rates, with the most enhancement of labour inspections and recent figures from 2017 demonstrating the oversight of employers. that the consistent poverty rate remains higher than 2010 levels (6.7% compared to 6.3% respectively).378 The data also • demonstrates that the consistent poverty rate for people who do not identify as being The Commission recommends that an Irish citizen or national is significantly the State consider the development higher than the general population (12.7% of a regularisation scheme for compared to 8.2% respectively). In 2016, undocumented people.375 the at-risk-of-poverty rate was 22.6% for people whose nationality is other than Irish and 42% for those from outside the EU, • compared to 15.7% for ‘Irish nationals’.379

The Commission recommends that • the Minister for Business, Enterprise and Innovation conduct a review of The Commission recommends that the State’s Critical Skills Employment the national targets and measures Permit from a gender perspective. In adopted by the State to reduce particular, the Minister should consider poverty take adequate account of the creation of permits for domestic the specific issues and multiple work. disadvantages faced by minority

Economic protection 377 Committee on the Rights of the Child, Concluding The Commission notes the State’s positive Observations on the Combined Third and Fourth Periodic Reports of Ireland, p.13. obligation to ensure the economic protection 378 The government’s national targets are to reduce of minority ethnic communities.376 However, consistent poverty to 2% by 2020 from the 2010 baseline the Committee on the Rights of the Child has rate of 6.3%, and to lift over 70,000 children out of highlighted its concerns that the consistent consistent poverty by 2020, a reduction of at least two- thirds on the 2011 level. However, data from the CSO shows that the consistent poverty rate was 6.7% in 2017, compared to 8.2% in 2016; the ‘at risk of poverty’ rate was 15.7% in 2017, compared to 16.2% in 2016; and in 2017, Ineligible List of Occupations for Employment Permits. 18.8% of the population experienced two or more types 375 The Commission previously made these of enforced deprivation, compared to 21% in 2016. See recommendations to the CEDAW. See IHREC, Submission Department of Social Protection (2016), Updated National to the United Nations Committee on the Elimination of Action Plan for Social Inclusion 2015–2017, p.5 and CSO Discrimination Against Women on Ireland’s Combined Sixth (2017), Survey on Income and Living Conditions. For an and Seventh Periodic Reports, p.91. explanation of the measures for enforced deprivation, see 376 See Article 2(2) of CERD. See also, European CSO, Poverty Indicators Explained. Committee of Social Rights (2011), Conclusions 2011 - 379 McGinnity et al., Monitoring Report on Integration 2018, Ireland - Article 16. pp.xiii, 51, 53.

IHREC CERD Submission | October 2019 78 ethnic groups, and that an accelerated who had applied for social protection, 48% programme of initiatives is put in place were unsuccessful despite living in Ireland to make up the ground lost. for an average of eight years. Sixty-seven per cent of these respondents indicated that the HRC was the reason for their lack of success in accessing payments.383 Habitual residence condition The Commission has raised its concerns As well as being disproportionately affected about the HRC since its establishment in by poverty, minority ethnic groups can 2014, including to treaty monitoring bodies face particular barriers to accessing such as the Human Rights Committee,384 social assistance. The HRC is an extra and the UN Committee on Economic, Social, qualifying condition requiring applicants and Cultural Rights.385 In particular, it has to demonstrate a connection to Ireland to highlighted the need for decision-makers access a range of social welfare benefits, to receive adequate training to make fair including Child Benefit. While the HRC and correct decisions on social protection is applied to all applicants for benefits applications and to support applicants in regardless of their nationality,380 in practice, meeting the requirements in place.386 it is not neutral in its application and can have a discriminatory impact on migrant, • Traveller, and Roma families.381 These families can face particular challenges in Reiterating its previous satisfying the conditions of the HRC due recommendations, the Commission to their nomadic way of life, employment recommends that the State should patterns, absence of family ties, or overall review the Habitual Residence length of time spent in the country.382 Condition and its impact on minority ethnic communities in practice. The National Roma Needs Assessment found that many Roma cannot meet the HRC as they lack the documentation to prove Protection of social the length of time that they have lived in and cultural life Ireland or their connection to the State. This is a significant challenge as many Roma are unemployed or working informally and The Commission welcomes the recognition living in accommodation without a tenancy agreement or utility bills. Of the respondents 383 Pavee Point Traveller and Roma Centre and Department of Justice and Equality, Roma in Ireland – A National Needs Assessment, pp.78–79. 380 Government of Ireland, 16th National Report on the 384 IHREC (June 2014), Irish Human Rights Commission implementation of the European Social Charter, pp.80–81. Submission to the UN Committee on the Examination of 381 IHREC, Submission to the United Nations Committee on Ireland’s Fourth Periodic Report under the International the Elimination of Discrimination Against Women on Ireland’s Covenant on Civil and Political Rights, p.22. Combined Sixth and Seventh Reports, p.92. See also, IHREC 385 IHREC, Report to UN Committee on Economic, Social and (May 2019), Comments on Ireland’s 16th National Report on Cultural Rights on Ireland’s Third Periodic Review. the Implementation of the European Social Charter, p.22. 386 See also, IHREC, Report to UN Committee on Economic, 382 FLAC (2016), FLAC Briefing for Nils Muižnieks: Council of Social and Cultural Rights on Ireland’s Third Periodic Review, Europe Commission for Human Rights, p.8. p.47.

79 IHREC CERD Submission | October 2019 of Travellers as an ethnic minority by the as supporting wellbeing in young men, Taoiseach (Prime Minister) in Parliament which is vital considering the extremely on 1 March 2017, noting that while it high levels of mental ill-health in the is of no legal effect, it is of significant Traveller community.391 The importance of symbolic value.387 The Commission also horse ownership to the cultural heritage welcomes the commitments made by the of Travellers is recognised in the National State in the National Traveller and Roma Traveller and Roma Inclusion Strategy Integration Strategy 2017–2021.388 2017–2021,392 and several regional Traveller horse projects have been developed to To protect the social and cultural life of promote knowledge and care of horses.393 the Traveller community, the Commission is of the view that the State must invest However, the Control of Horses Act 1996 in the necessary infrastructure. While led to a notable increase in the seizure and the funding provided to date to promote impoundment of Traveller horses. The Act Traveller culture is welcome, it has been provided local authorities with the power to criticised for its ad hoc and project-based dictate that horses are allowed in designated character.389 The Advisory Committee ‘Control Areas’ only and that horses must on the Framework Convention for the be licensed in these areas. The Commission Protection of National Minorities recently notes that local authorities have a significant called on the Irish authorities to ensure the budget for the seizure and impoundment availability of institutional funding to support of horses, particularly in Limerick,394 but the continuous presence of the Traveller there does not appear to be provision for community in Ireland’s cultural life.390 assistance to Travellers in complying with the requirements of the legislation.395 A There have also been criticisms at a national recent report has indicated that horse level about the failure of the State to ownership continues to be increasingly take adequate measures to support the restrained due to the implementation of tradition of horse ownership and its central local authority by-laws. According to the role in Traveller culture and identity. Horse respondents in this research, compliance ownership and the promotion of Traveller with the legislation (61%) and the threat culture more broadly have been identified of impounding (78%) are particular barriers to Travellers keeping horses.396

387 This was restated in the High Court, where Justice Eager remarked that the recognition ‘has no legal effect, 391 Pavee Point Traveller and Roma Centre (2018), Traveller clearly it is not legislation’. See Mongans & Ors v Clare County Horse Ownership, p.10. Council [2017] IEHC 709, para. 37. 392 Department of Justice and Equality, National Traveller 388 Dáil Éireann debate (1 March 2017), ‘Traveller ethnicity: and Roma Inclusion Strategy 2017–2021. statements’ and IHREC (1 March 2017), ‘Historic step as 393 Dáil Éireann Debate (11 October 2018), ‘Control of Traveller ethnicity recognised by State’. See also, Department Horses’. of Justice and Equality, National Traveller and Roma Inclusion 394 There are reports that the local authority in Limerick Strategy 2017–2021. was estimated to spend €1.625 million on horse control from 389 Advisory Committee on the Framework Convention 2015–2017. See F. Walsh (22 January 2017), ‘Horse control to for the Protection of National Minorities, Fourth Opinion on cost Limerick council €475k in 2017’, The Limerick Post. Ireland, pp.12–13. 395 P. Wood (2017), ‘Travellers, land management, and the 390 Advisory Committee on the Framework Convention political ecology of marginalisation in Celtic-Tiger Ireland’, for the Protection of National Minorities, Fourth Opinion on Irish Geography, 50(1), pp.60, 66. Ireland, pp.12–13. 396 Pavee Point Traveller and Roma Centre, Traveller Horse

IHREC CERD Submission | October 2019 80 The report also recommended that the State develop a more positive relationship between the Traveller community and local authorities and take measures to build awareness of the importance of horse ownership for Travellers.397

•

The Commission recommends that the State support Travellers in preserving and developing their identity and culture, including nomadism and horse ownership.

•

The Commission recommends that the State engage in consultations with the Traveller community about the establishment of a permanent cultural centre.398

Ownership, pp.13, 15. 397 Pavee Point Traveller and Roma Centre, Traveller Horse Ownership, pp.20–24. 398 A similar recommendation has also been made by the Advisory Committee on the Framework Convention for the Protection of National Minorities. See Advisory Committee on the Framework Convention for the Protection of National Minorities, Fourth Opinion on Ireland, pp.12–13.

81 IHREC CERD Submission | October 2019 Section 10 Health and Social Services (Articles 5(e)(iv)) Access to healthcare services met with families who are in the asylum and health outcomes process and have been placed in emergency accommodation, and they highlighted the lack of information provided about The Commission is concerned about the accessing medical services. Furthermore, significant barriers to accessing services and particular barriers can be faced by women inequitable health outcomes experienced in the asylum process seeking to access by minority ethnic groups in Ireland.398 abortion services, including where their accommodation is remotely located, and they These administrative and structural barriers are reliant on the public transport system.403 include a lack of awareness about health services available and how to access them, as well as difficulties in accessing a Personal 399 ʽ Public Service (PPS) number and a medical Significant regional variations card.400 Significant regional variations persist persist in the Irish healthcare in the Irish healthcare system that give rise to inequitable access to services.401 People system that give rise to living in direct provision and emergency inequitable access to services. accommodation centres have criticised the shortage of general practitioners (GPs) and During its consultations with civil society out-of-hours services in their local area, and young people, it was also indicated resulting in a lack of choice, difficulties in to the Commission that minority ethnic obtaining appointments, and inadequate communities are reluctant to access care.402 In February 2019, the Commission healthcare services due to discrimination they have experienced in the past and fears about the treatment they will receive. As one young person explained, ‘you prepare to be 398 See IHREC, Submission to the United Nations disappointed.’404 There have also been calls for Committee on the Elimination of Discrimination Against Women on Ireland’s Combined Sixth and Seventh Periodic Reports, pp.16, 99. 399 A PPS number is a unique reference number that facilitates people to access social welfare benefits and public Equality (29 May 2019), ‘Direct provision and the international services in Ireland. protection application process: discussion (resumed)’ and 400 See HSE, Second National Intercultural Health Strategy Irish Refugee Council, The Reception Conditions Directive: 2018–2023, p.62; IHREC, Submission to the United Nations One Year On, pp.24–25. Note, Article 19 of the Reception Committee on the Elimination of Discrimination Against Conditions Directive (recast) (2013/33/EU) requires Women on Ireland’s Combined Sixth and Seventh Periodic the Minister for Health to ensure that a person in the Reports, p.99; Irish Refugee Council, The Reception international protection system has access to a broad range Conditions Directive: One Year On, p.25; and Pavee Point of healthcare, including emergency care and treatment for Traveller and Roma Centre and Department of Justice and serious illnesses. Equality, Roma in Ireland – A National Needs Assessment, 403 J. Leogue (19 February 2019), ‘Call for better access to pp.96–98. abortions for women in direct provision’, The Irish Examiner. 401 See IHREC, Submission to the United Nations A recent report has acknowledged that while the issue of Committee on the Elimination of Discrimination Against poor public transport affects the Irish population in general, Women on Ireland’s Combined Sixth and Seventh Periodic it is likely to affect refugees disproportionately as they are Reports, p.99. unlikely to have their own transport, especially on initial 402 This issue was raised with the Commission staff at the resettlement, and they can lack family and social ties with Civil Society Forum on 27 May 2019 and during the visits with individuals who might be in a position to help with transport. families living in emergency accommodation in February See Ní Raghallaigh et al., Safe Haven, p.35. 2019. See also, Joint Oireachtas Committee on Justice and 404 These issues were raised at the Commission’s Be

83 IHREC CERD Submission | October 2019 health services, including maternity services, • to be more responsive to the specific needs of minority ethnic people through the provision The Commission recommends that of culturally appropriate treatment.405 At the State advance the introduction of the Civil Society Forum, the participants an ethnic identifier across the health highlighted the need for more quality training sector and the systematic publication on anti-racism and cultural awareness across of disaggregated data, with the specific all frontline health services and the proactive aim of supporting policy reform and the recruitment of a more diverse workforce. planning and delivery of appropriate services for ethnic minorities.409 As recognised by the State, efforts towards implementing ethnic equality monitoring in the health sector have been ‘fragmented, • resulting in limited capacity to evaluate the impact of targeted actions.’ Where ethnic The Commission recommends that the data is collected, it is often incomplete or of State introduce measures to progress poor quality.406 The Commission welcomes and evaluate the delivery of cultural the publication of the Second National competency training across frontline Intercultural Health Strategy 2018–2023 health services and to ensure that the in January 2019 and the commitment to workforce fully reflects the diversity of develop an ethnic identifier throughout the population. the health service.407 However, progress in this area has been ‘slow to date.’408 The Commission is aware that access to health services is impeded by the inadequate provision of quality and regulated interpreting services for people with language support needs.410 There Heard on CERD consultation on 30 March 2019 and the Civil Society Forum on 27 May 2019. are reports of tensions between services 405 HSE, Second National Intercultural Health Strategy about the cost of interpretation and who is 2018–2023, p.64. This issue was also raised at the Civil responsible for payment.411 The use of family Society Forum on 27 May 2019. members, including children and friends, as 406 HSE, Second National Intercultural Health Strategy 2018–2023, pp.40, 77. 407 HSE, Second National Intercultural Health Strategy 2018–2023. The Migration Integration Strategy 2017–2020 commits to the recording of ethnicity as part of ethnic 409 The Commission previously made this equality monitoring across the health service, as a means recommendation to the UN Committee on Economic, Social, of identifying the unique needs of migrants and developing and Cultural Rights in 2015. See IHREC, Report to the UN interventions to address these needs. See Department of Committee on Economic, Social and Cultural Rights on Ireland’s Justice and Equality, The Migrant Integration Strategy 2017– Third Periodic Review, p.77. 2020, p.30. The National Traveller and Roma Inclusion Strategy 410 Crosscare (December 2018), Do You Speak English? 2017–2021 also commits to the phased and incremental A Study on Access to Interpreter Services in Public Social implementation of a standardised ethnic identifier across Welfare Offices in Ireland, p.6 and HSE, Second National all health administrative systems to monitor access, Intercultural Health Strategy 2018–2023, p.49. These issues participation, and outcomes of all groups. See Department relating to interpreting services have been raised since of Justice and Equality, National Traveller and Roma Inclusion 2007. See National Consultative Committee on Racism and Strategy 2017–2021, p.33. Interculturalism (February 2007), Interpreting, Translation and 408 Government of Ireland, The Migrant Integration Public Bodies in Ireland: The Need for Policy and Training. Strategy 2017–2020, pp.55–56. 411 Ní Raghallaigh et al., Safe Haven, p.37.

IHREC CERD Submission | October 2019 84 interpreters within health services is also with limited or no English accessing free commonly reported. In recent research GP services. This review resulted in a conducted with 158 adults whose first commitment by the HSE to seek additional language was not English or Irish, 91% funding and measures to encourage the had never used a professional interpreter use of professional interpreting services.416 in Ireland, and 79% had previously acted The Commission also welcomes the State’s as an interpreter for family or friends, recent commitment to finalise an appropriate including in hospitals.412 Such informal model for the phased implementation of interpretation arrangements raise serious interpreting provision across the HSE.417 issues relating to privacy, confidentiality, informed consent, and empowerment.413 • The Health Service Executive’s (HSE) good practice guidelines, On Speaking Terms, The Commission recommends that note that the failure to provide formal interpreting services in Ireland are interpreting services, when there is a professionalised and regulated, known language barrier, could be construed including through the development of a as unlawful racial discrimination.414 system of accreditation and training.

The Commission is particularly concerned ʽ...access to health services is about the disproportionately poor health impeded by the inadequate outcomes of Travellers and Roma in Ireland.418 The All Ireland Traveller Health provision of quality and Study reported in 2010 that, in comparison regulated interpreting to the national average, life expectancy at services for people with birth is 15.1 years less for Traveller men and 11.5 years less for Traveller women, language support needs. while the Traveller infant mortality rate is 3.6 times higher.419 In 2016, 2.9% of Irish In 2018, the Commission invited the HSE to carry out an equality review415 on the provision of interpreting services to people 416 IHREC (2018), Annual Report 2018, p.27. 417 HSE, Second National Intercultural Health Strategy 2018–2023, pp.22–23. The Migration Integration Strategy 2017–2020 also includes a commitment to develop an 412 Immigrant Council of Ireland (2017), Language and appropriate model for the provision of interpreting services Migration in Ireland, pp.24–26. to users within the health area who are not proficient in 413 Crosscare, Do You Speak English?, p.14. These issues English. See Department of Justice and Equality, The Migrant were also raised at the Commission’s Be Heard on CERD Integration Strategy 2017–2020, p.30. For details on the consultation on 30 March 2019 and the Civil Society Forum proposed model, see A. MacFarlane (2018), To Develop a on 27 May 2019. Model for the Implementation of Trained Interpreters in the 414 HSE (2009), On Speaking Terms: Good Practice Irish Healthcare System, (HSE). Guidelines for HSE Staff in the Provision of Interpreting 418 These disproportionately poor health outcomes have Services, pp.7–8. been acknowledged by the State. See The Committee, 415 Under section 32 of the Irish Human Rights and Combined Fifth to Ninth Periodic Reports Submitted by Ireland Equality Commission Act 2014, the Commission can ‘invite Under Article 9 of the Convention, p.8 and HSE, Second a particular undertaking, group of undertakings or the National Intercultural Health Strategy 2018–2023, p.52. undertakings making up a particular industry or sector 419 All Ireland Traveller Health Study Team (2010), All thereof’ to conduct an equality review. Ireland Traveller Health Study: Our Geels – Summary of

85 IHREC CERD Submission | October 2019 Traveller males were aged over 65, compared experiences.424 The National Roma Needs to 12.6% of the general population.420 Assessment found that 39% of respondents Overall, research has demonstrated that did not have a GP, and 50% did not have a the gap in poor health between Travellers medical card. Furthermore, 25% of Roma and the general population increases women had not engaged with health very rapidly after the age of 35.421 services while pregnant and their first point of access was to give birth. This study The 2017 Traveller Community National reported that there is a fear about potential Survey asked 481 Travellers about the issues costs, resulting in a reluctance to access they were actively concerned about their basic health services.425 Low uptake of health. Seventy-one per cent of respondents immunisations among Roma children has also identified lifestyle and diet factors, 41% been identified as a particular concern.426 identified drug and alcohol consumption, 33% identified long-term physical illness, The Commission recognises that specific and 22% identified isolation. Thirty-six per measures have been adopted by the State, cent of the respondents also assessed their including the development of the Traveller health as poor or very poor (in comparison Primary Health Care Projects aimed at to 19% of the general population).422 The improving health outcomes in the Traveller pattern of poor health among Travellers community.427 The Tallaght Roma Integration is a clear example of the effects of Project also provides primary healthcare cumulative disadvantage in education, and support to members of the local employment, housing, and other issues Roma community.428 The National Traveller such as prejudice and discrimination.423 and Roma Inclusion Strategy 2017–2021 includes several actions focused on the Roma are considered an at-risk group healthcare system, including improving in terms of health, with a higher infant mortality rate and lower life expectancy. A lack of access to services also compounds 424 Pavee Point Traveller and Roma Centre and the HSE the health issues that this community (November 2012), Roma Communities in Ireland and Child Protection Considerations, pp.22–23. See also, HSE, Second National Intercultural Health Strategy 2018–2023, p.52. 425 Pavee Point Traveller and Roma Centre and Findings, (Dublin: University College Dublin), pp.87, 94–95. Department of Justice and Equality, Roma in Ireland – A Note, this study included consideration of the broader social National Needs Assessment, pp.96–97, 99–100. See also, determinants of relevance to health, including environment HSE, Second National Intercultural Health Strategy 2018– and poor living conditions, lack of recognition of Traveller 2023, pp.52–53. culture and identity, individual and institutional level racism, 426 HSE, Second National Intercultural Health Strategy and social exclusion. 2018–2023, p.56. Note, the National Traveller and Roma 420 CSO, Census of Population 2016 – Profile 8 Irish Inclusion Strategy 2017–2021 commits to promoting Travellers, Ethnicity and Religion. immunisation uptake among members of the Roma 421 Watson et al., A Social Portrait of Travellers in Ireland, community and to support Roma women to access maternal pp.61–62, 78. health services in a timely and appropriate manner. See 422 The Community Foundation for Ireland, B&A Traveller Department of Justice and Equality, National Traveller and Community National Survey, pp.39, 42. Roma Inclusion Strategy 2017–2021, p.34. 423 Watson et al., A Social Portrait of Travellers in 427 For further information, see Advisory Committee on Ireland, pp.61–62, 78. Approximately 67% of service the Framework Convention for the Protection of National providers reported their belief that Travellers experience Minorities, Fourth Opinion on Ireland, pp.22–23. discrimination in their use of health services. See 428 Pavee Point Traveller and Roma Centre and Department of Justice and Equality, National Traveller and Department of Justice and Equality, Roma in Ireland – A Roma Inclusion Strategy 2017–2021, p.11. National Needs Assessment, p.127.

IHREC CERD Submission | October 2019 86 access, participation rates, and outcomes discrimination can also generate negative for Travellers and Roma.429 However, the coping mechanisms among young people implementation of this policy framework in particular, including substance abuse, has been inadequate to date.430 suicidal ideation, and disengagement from public services.433 Furthermore, stigma • and exclusion from society have been identified as challenging barriers faced by The Commission recommends the people from minority ethnic communities development of additional public in reaching out to mental health services health, health promotion, and outreach and continuing with their treatment.434 services for minority ethnic groups, including to address the specific health needs of Travellers and the broader social determinants that lead to health ʽOne of the strongest themes inequalities. arising from the Commission’s recent consultations on CERD • is the significant impact of

The Commission recommends the racial discrimination and development of a national primary prejudice on the mental healthcare project for Roma.431 health of minority ethnic communities. Mental health Overall, the level of community mental health One of the strongest themes arising from services in Ireland continues to fall short of the Commission’s recent consultations national targets, and there are significant on CERD is the significant impact of racial waiting lists in place for both primary care discrimination and prejudice on the mental health of minority ethnic communities. This aligns with research that demonstrates Services and Staff on Working with People from Ethnic Minority that there is a strong relationship between Communities, p.8, Pavee Point Traveller and Roma Centre experiences of racism and high levels of and Department of Justice and Equality, Roma in Ireland – A depression, anxiety, low self-esteem, and National Needs Assessment, p.104 and Watson et al., A Social reduced resilience.432 Dealing with racial Portrait of Travellers in Ireland, p.11. 433 Cairde (2015), Ethnic Minorities and Mental Health in Ireland: Barriers and Recommendations, p.13 and Mental Health Reform, Ethnic Minorities and Mental Health, p.9. 434 Mental Health Reform, Ethnic Minorities and Mental 429 Department of Justice and Equality, National Traveller Health, p.9. In a study conducted with minority ethnic and Roma Inclusion Strategy 2017–2021, pp.33–36. communities, over 50% of respondents indicated that they 430 ECRI, Report on Ireland (Fifth Monitoring Cycle), p.25. have not sought help for their mental health difficulties. 431 This was also recommended in the National Roma See Cairde, Ethnic Minorities and Mental Health in Ireland, Needs Assessment. See Pavee Point Traveller and Roma p.11. Note, the Second National Intercultural Health Strategy Centre and Department of Justice and Equality, Roma in 2018–2023 includes a commitment to tackle the issue of Ireland – A National Needs Assessment, p.105. mental health stigma among minority ethnic communities. 432 Mental Health Reform (December 2016), Ethnic See HSE, Second National Intercultural Health Strategy Minorities And Mental Health: Guidelines For Mental Health 2018–2023, p.19.

87 IHREC CERD Submission | October 2019 and specialist services.435 Such delays can about the mental health of their children.439 have a particularly acute impact on groups A significant majority of respondents agreed experiencing higher levels of mental ill- that mental health issues are prevalent health than the general population. among the Traveller community (91%) and have increased in recent years (84%). The All Ireland Traveller Health Study They also reported that discomfort with reported in 2010 that the suicide rate among discussing mental health issues is common Traveller men is 6.6 times higher than in the across age groups (80%).440 Poverty, poor general population and suicide accounts housing, lack of employment, inequality, for 11% of all Traveller deaths.436 According racism, and the lack of cultural respect to representatives from the Traveller have been identified as determinants of community, there has been a steep rise the ‘exponentially high’ levels of mental ill- in the level of suicide in their community, health among the Traveller community.441 particularly among Traveller women, since 2010. Reports indicate that there were at Mental health issues are also extremely least 30 deaths of Travellers by suicide in six prevalent in the Roma community. In the counties from January to August 2019.437 National Roma Needs Assessment, 51% of Research conducted in 2017 identified that respondents reported that their mental 82% of Travellers have been affected by health was poor for more than 14 days of the suicide.438 Forty-five per cent of respondents previous month, while 34% reported that in this research also reported that they their mental health was poor for every day of are concerned about their mental health, the previous month. Respondents identified and 31% reported that they are concerned discrimination, unemployment, and lack of social protection as sources of stress.442 The Commission notes that the National Traveller and Roma Inclusion Strategy 2017–2021 435 See Department of Health and Children (2006), A Vision includes several commitments of relevance for Change: Report of the Expert Group on Mental Health to the mental health needs of Travellers and Policy and Mental Health Commission (2017), Annual Report (Including Report of the Inspector of Mental Health Services), Roma, including the development of culturally p.60. For example, it was reported in February 2019 that appropriate and accessible services.443 more than 1,200 adults have been waiting for counselling services for more than three months and 2,560 children are on the Child and Adolescent Mental Health Service waiting list, of which almost 300 have been waiting for more than a 439 The Community Foundation for Ireland, B&A Traveller year. See B. Hutton (18 February 2019), ‘Over 1,200 adults Community National Survey, pp.38–39. waiting three months-plus for counselling, says HSE’, The Irish 440 The Community Foundation for Ireland, B&A Traveller Times. Community National Survey, p.45. 436 The study also reported that 62.7% of Traveller women 441 Houses of the Oireachtas, Joint Committee on the and 59.4% of Traveller men reported that their mental health Future of Mental Health Care, p.13; Watson et al., A Social was not good for one or more of the previous 30 days. See Portrait of Travellers in Ireland, p.11; and Joint Committee All Ireland Traveller Health Study Team, All Ireland Traveller on Key Issues affecting the Traveller Community, Traveller Health Study, p.94. See also, Houses of the Oireachtas Mental Health. (October 2018), Joint Committee on the Future of Mental 442 Pavee Point Traveller and Roma Centre and Health Care: Final Report, p.13. Department of Justice and Equality, Roma in Ireland – A 437 Joint Committee on Key Issues affecting the Traveller National Needs Assessment, pp.14, 97. See also, HSE, Second Community (24 September 2019), Traveller Mental Health: National Intercultural Health Strategy 2018–2023, p.53. Discussion. 443 Department of Justice and Equality, National Traveller 438 Overall, 481 Travellers took part in this survey. The and Roma Inclusion Strategy 2017–2021, pp.29, 35–36. See Community Foundation for Ireland, B&A Traveller Community also the recommendations of the Joint Committee on National Survey, p.48. the Future of Mental Health Care relating to the provision

IHREC CERD Submission | October 2019 88 recognises that protection applicants ʽ experience higher levels of depression than Complex immigration people granted refugee status, and higher policies, difficulties in rates of anxiety and depressive disorders than other sections of society.446 The impact accessing secure employment, of experiences before their arrival in Ireland education, and financial on children’s mental health, as well as their stability, a lack of control over post-migratory experiences of resettlement, have been identified as manifesting in everyday life, and uncertainty specific symptoms such as bedwetting, about the future are also nightmares, sleeping difficulties, and anger.447 associated with the increased As recognised by the Committee,448 the prevalence of mental health adverse impact of the direct provision issues among people in the system on the mental health of residents, international protection including children, is a serious issue, with reports that suicide attempts in system. the centres have increased over recent months.449 Families placed in emergency The Commission is concerned about the accommodation centres have highlighted to mental health issues faced by people seeking the Commission that they ‘have nothing to asylum in Ireland, particularly when they do’ or ‘no one to talk to’, and as a result, they have pre-existing experiences of trauma, feel ‘depressed’, ‘sad’, and ‘forgotten’.450 The torture, female genital mutilation (FGM), and Commission notes that under the Reception violence.444 Complex immigration policies, Conditions Directive (recast), the Minister difficulties in accessing secure employment, is required to ensure that people in the education, and financial stability, a lack of asylum process have access to appropriate control over everyday life, and uncertainty mental healthcare.451 However, concerns about the future are also associated with have been raised that mental health needs the increased prevalence of mental health issues among people in the international protection system.445 The Second National 446 HSE, Second National Intercultural Health Strategy Intercultural Health Strategy 2018–2023 2018–2023, pp.66–67. 447 Ní Raghallaigh et al., Safe Haven, pp.33–34. 448 The Committee (4 April 2011), Concluding Observations of the Committee on the Elimination of Racial Discrimination: of mental health services to members of the Traveller Ireland, pp.4–5. community. Houses of the Oireachtas, Joint Committee on 449 Joint Committee on Justice and Equality (29 May the Future of Mental Health Care, pp.6–7, 9, 21–22. 2019), Direct Provision and the International Protection 444 HSE, Second National Intercultural Health Strategy Application Process: Discussion (Resumed). Note, the Second 2018–2023, p.52. National Intercultural Health Strategy 2018–2023 includes 445 These issues were raised at the Commission’s Be a commitment to address the mental health needs of Heard on CERD consultation on 30 March 2019 and the people living in Direct Provision. See HSE, Second National Civil Society Forum on 27 May 2019. The Commission also Intercultural Health Strategy 2018–2023, pp.27, 31. previously raised this issue with the UN Committee on 450 The Commission staff met with families in the Economic, Social, and Cultural Rights in 2015. See IHREC, asylum process who had been placed in B&B and hotel Report to the UN Committee on Economic, Social and Cultural accommodation in February 2019. Rights on Ireland’s Third Periodic Review, p.xxxix. See also, 451 See Article 19 of the Reception Conditions Directive Cairde, Ethnic Minorities and Mental Health in Ireland, p.17. (recast) (2013/33/EU).

89 IHREC CERD Submission | October 2019 are not being formally assessed in the to residents in all direct provision centres, resulting in the lack of referrals to and emergency accommodation appropriate treatment in a timely manner.452 centres and that increased expertise Overall, the insufficient availability of mental is developed within community-based health services with expertise in working services concerning appropriate with adults and children from minority interventions and support for people in ethnic communities and the specific the international protection process. issues they face has been criticised.453

The Commission notes that the government • has committed to reviewing the underpinning legislation for mental healthcare in Ireland, As recommended by the Committee on the Mental Health Act 2001, and the national the Rights of the Child, the Commission policy framework, A Vision for Change. recommends the further development However, there have been extensive of mental health advocacy and delays in progressing this reform.454 information services for children, including children from minority ethnic • communities.455

The Commission recommends that the prevalence of mental health issues Social services for among minority ethnic communities, children and families the barriers they face in accessing services, and the public health challenges of addressing the social There is limited research or data in Ireland determinants of mental ill-health on the interaction of minority ethnic are fully reflected in forthcoming communities with social services.456 However, legislative and policy developments. the Child Care Law Reporting Project457 has identified that a disproportionate number of

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455 In 2016, the Committee on the Rights of the Child The Commission recommends that called on the State to consider establishing a mental health mental health services are available advocacy and information service that is specifically for children, and accordingly accessible and child-friendly. See Committee on the Rights of the Child, Concluding Observations on the Combined Third and Fourth Periodic Reports of Ireland, p.12. 452 Irish Refugee Council, The Reception Conditions 456 G. Shannon (March 2018), Audit of the Exercise by An Directive: One Year On, pp.26–27 and College of Psychiatrists Garda Síochána of the Provisions of Section 12 of the Child of Ireland (March 2017), The Mental Health Service Care Act 1991, p.109. See also, S. Roe (November 2018), A Requirements in Ireland for Asylum Seekers, Refugees and Report on the Findings of an Open Policy Debate on the Review Migrants from Conflict Zones: Position Paper, p.6. For further of the Child Care Act 1991, pp.11, 25. commentary on vulnerability assessments, see section 13. 457 The Child Care Law Reporting Project examines 453 This issue was raised at the Civil Society Forum on 27 and reports on judicial childcare proceedings. It provides May 2019. See also, Ní Raghallaigh et al., Safe Haven, p.36. information to the public on the operation of the childcare 454 For further information, see IHREC (May 2019), system in the courts with the aim of promoting transparency Comments on Ireland’s National Report on the Implementation and accountability. For further information, see www. of the European Social Charter, p.28. childlawproject.ie.

IHREC CERD Submission | October 2019 90 children involved in care proceedings have at these centres go beyond their responsibilities least one parent from a minority ethnic group. under child protection legislation and this In particular, Traveller families are significantly can infringe the family’s right to privacy. In overrepresented and are involved in 4.4% of turn, the parents felt that they were being cases before the childcare courts.458 It has also threatened with reports to social services.462 been reported that child protection issues in Traveller families may not come to the Roma families are grossly overrepresented attention of social services until they are at in State care institutions across Europe crisis level, which can result in them becoming and, therefore, it is recognised that the high conflict and contested cases.459 Families Roma community may have had negative where both parents’ country of origin is an experiences with child protection services.463 African country are approximately seven times Many Roma families in Ireland are living in more likely to face childcare proceedings, poverty, without access to welfare or other compared to families where both parents basic supports, and this has been reported were born in Ireland. In these cases, ‘parental as putting pressure on social workers to take disability’ is often cited as the reason for children into care.464 It emerged in recent seeking a care order, and this commonly research that some Roma mothers avoid relates to mental health issues on the part public health nurses for fear of children of a mother living in direct provision.460 being taken into care due to poverty and poor living conditions.465 The level of trust The Commission is aware that fears among among Roma families in the child protection minority ethnic communities about the system is also likely to have been significantly risk of their children being taken into care, affected by the reports in 2013 of the and their distrust of State authorities, can removal of two Roma children from their act as a barrier to accessing services.461 families on the basis that their appearance Recent research has identified that the staff did not conform to racial stereotypes and in EROCs can make generalisations about resemble their respective parents.466 the parenting skills of refugees, particularly concerning the supervision of their children. The research suggested that the staff in 462 Ní Raghallaigh et al., Safe Haven, pp.39–40. 463 Pavee Point Traveller and Roma Centre and Department of Justice and Equality, Roma in Ireland – A 458 C. Coulter (2015), Final Report (Dublin: Child Care Law National Needs Assessment, p.24 and Pavee Point Traveller Reporting Project), p.13. Note this was considered to be and Roma Centre and the HSE, Roma Communities in Ireland an under-estimation as ethnicity was not recorded in all and Child Protection Considerations, p.18. cases. See also, Pavee Point Traveller and Roma Centre and 464 Pavee Point Traveller and Roma Centre and the the HSE, Roma Communities in Ireland and Child Protection HSE, Roma Communities in Ireland and Child Protection Considerations, p.36. Considerations, p.22 and Pavee Point Traveller and Roma 459 C. Coulter (2018), An Examination of Lengthy, Contested Centre (March 2015), Irish Traveller and Roma Children and Complex Child Protection Cases in the District Court Shadow Report: A Response to Ireland’s Consolidated Third (Dublin: Child Care Law Reporting Project), p.68. and Fourth Report to the UN Committee on the Rights of the 460 C. Coulter, Final Report, pp.13, 16. See also, Joint Child, p.7. Committee on Justice and Equality (12 June 2019), Direct 465 Pavee Point Traveller and Roma Centre and Provision and the International Protection Application Process: Department of Justice and Equality, Roma in Ireland – A Discussion (Resumed). National Needs Assessment, pp.62, 101. See also, Pavee Point 461 HSE, Second National Intercultural Health Strategy Traveller and Roma Centre and the HSE, Roma Communities 2018–2023, p.64 and C. Coulter, An Examination of Lengthy, in Ireland and Child Protection Considerations, p.27. Contested and Complex Child Protection Cases in the District 466 Emily Logan (who at the time was the Ombudsman for Court, p.96. Children but was acting in an independent capacity for the

91 IHREC CERD Submission | October 2019 Furthermore, there are ongoing gaps in the account of the issues experienced availability of appropriate placements to by minority ethnic families in meet the needs of children who are placed in engaging with welfare and protection alternative care.467 There have been reports services, their overrepresentation of objections by parents about the foster in childcare proceedings, and the care placements provided to their children, need for alternative care placements including because the placements were appropriate to their individual not appropriate to the religious, cultural, circumstances and needs.471 or linguistic background of the family.468

The Commission notes that the State has commenced a review of the Child Care Act 1991, the legislative framework empowering the State to promote the welfare of children who are not receiving adequate care and protection.469 The Health Information and Quality Authority has also commenced the development of draft national standards for children’s social services, which will be applicable to all welfare and protection services for children.470

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The Commission recommends that the review of the Child Care Act 1991 and the new national standards for children’s social services take adequate

purposes of the investigation) carried out a special inquiry into these cases and found that, in the case of one of the Roma children affected, his ‘ethnicity was so influential in determining the decision to remove him from the care of his parents, with no objective or reasonable justification’ that it amounted to ethnic profiling. See Department of Justice and Equality, Report of Ms. Emily Logan, p.115. 467 See IHREC, Comments on Ireland’s 16th National Report on the Implementation of the European Social Charter, p.31. 468 C. Coulter, Final Report, pp.29, 45. See also, Pavee Point Traveller and Roma Centre and the HSE, Roma Communities in Ireland and Child Protection Considerations, p.36. 471 Note, the National Traveller and Roma Inclusion Strategy 469 Minister for Children and Youth Affairs, Katherine 2017–2021 makes a commitment that child protection Zappone (15 December 2017), ‘Reviewing laws for children services will encourage involvement with Traveller and Roma in crisis – consultation begins: “Laws to be updated to reflect a communities in carrying out their duties and measures will quarter of a century of change”’. be explored to support Travellers and Roma to become social 470 Health Information and Quality Authority (14 August workers and social care workers. See Department of Justice 2019), Scoping Consultation to Inform the Development of and Equality, National Traveller and Roma Inclusion Strategy Draft National Standards for Children’s Social Services. 2017–2021, pp.29–30.

IHREC CERD Submission | October 2019 92 Section 11 Housing (Articles 5(d)(v), 5(e)(iii)) Housing policy In April 2018, the Commission invited the four Dublin local authorities to carry out The Commission notes the view of the equality reviews476 specifically focused on United Nation’s Special Rapporteur EEA and non-EEA nationals’ access to social on adequate housing that the housing and homeless services.477 These constitutionalisation of the right to housing reviews raised serious concerns across the in Ireland is of fundamental importance local authorities about the application of the to the realisation of human rights and the Circular, which excludes certain applicants adoption of human rights-based housing (especially EEA nationals) who would policies.473 A recent national poll published otherwise qualify for social housing supports. by the Commission demonstrated that 63% Following these findings, the Commission of people generally, and 78% of 18–24-year- is concerned that its application in practice olds, believe that a right to housing should be would see unlawful refusals to both homeless entered into the Constitution of Ireland.474 and social housing services, amounting to discrimination on the ground of race.478 Overall, the State’s approach to the provision of housing is inadequate. In particular, the current policy environment and associated instruments have significant implications for minority ethnic groups.

An applicant for social housing support is assessed according to the Housing (Miscellaneous Provisions) Act 2009 and the registered as a jobseeker with the Department of Social Social Housing Assessment Regulations Protection. See Circular Housing 41/2012 – Access to Social 2011 (as amended). However, applicants Housing Supports for Non-Irish Nationals. who live in Ireland but are from an EEA 476 Under section 32 of the Irish Human Rights and State (excluding the United Kingdom) face Equality Commission Act 2014, the Commission can ‘invite a particular undertaking, group of undertakings or the additional hurdles, including in relation to undertakings making up a particular industry or sector their employment status. This is mandated thereof’ to conduct an equality review. by the Department of Housing, Planning, 477 The four local authorities (Dublin City Council, Dún and Local Government’s Circular 41/2012.475 Laoghaire–Rathdown County Council, Fingal County Council, and South Dublin County Council) were tasked to audit, considering their obligations under Ireland’s equality legislation, the level of equality of opportunity for people in accessing social housing services as set 473 S. Burns, (11 June 2018) ‘UN backs calls to make housing out in section 19 of the Housing Act 2009, and people’s a constitutional right in Ireland’, The Irish Times and Simon access to homeless services governed by section 10 of the Community (June 2018), Making the Case for the Right to Housing Act 1988. The local authorities were also tasked Housing, p.2. to examine their practices and procedures for the provision 474 This poll involved a nationally representative sample of accommodation services to non-Irish nationals (EEA of 1,200 participants. See Amárach Research and IHREC and non-EEA) to determine whether these practices and (October 2018), Understanding and Awareness of Human procedures promoted equality of opportunity in line with Rights and Equality in Ireland, p.15. their equality obligations under the Equal Status Acts. 475 The Circular outlines access to social housing supports 478 This echoes previous concerns that the Circular for ‘non-Irish nationals’ and states that as an EU citizen living unduly restricts the ability of EEA citizens in Ireland to apply in Ireland, an individual must be in employment in order to for social housing with particular implications for access to be assessed for social housing support. If not, they must housing for minority ethnic groups. See Children’s Rights be unemployed due to illness, accident, or involuntarily Alliance (July 2015), Making Rights Real for Children: A unemployed after being in employment for over a year and Children’s Rights Audit of Irish Law.

IHREC CERD Submission | October 2019 94 • increasingly supporting individuals who have been discriminated against based on their The Commission recommends that receipt of HAP. In particular, it is concerned Circular 41/2012 on ‘access to social by the evidence of discriminatory advertising housing supports for non-Irish used to obstruct access to housing in the nationals’ be reviewed and amended private rental sector for people in receipt to ensure that EEA nationals are not of HAP.482 HAP is a costly market-oriented unlawfully discriminated against in scheme and is unlikely to provide satisfactory accessing social housing supports.479 long-term housing solutions in the absence of sufficient complementary measures.

Current government housing policy is now heavily dependent on the use of the private ʽ housing market to meet social housing Current government housing needs.480 This is apparent in the case of policy is now heavily HAP, now a key pillar of the State’s social housing strategy.481 The Commission is dependent on the use of the private housing market to meet social housing needs. 479 The Commission has previously written to the Department of Housing, Planning, and Local Government seeking changes to the Circular. See IHREC, Annual Report • 2018, p.28. 480 Changes made to arrangements for funding social The Commission recommends that housing over the past three decades has caused a long- term contraction in the role of social housing as the key the State adopt a policy approach that source of accommodation for low-income households primarily views access to housing as a in Ireland. The decision to withdraw from building social fundamental human right, rather than housing and to provide rent supplement for low-income as a matter for the private market. private renters instead has made low-income households extremely vulnerable to shocks in the housing market. This approach should include a new Austerity imposed after the global financial crisis has merely commitment to social housing and accelerated this long-term trend, rather than signalling a public housing provision. new policy direction. See R. Hearne and M. Murphy (2018), ‘An absence of rights: homeless families and social housing marketisation in Ireland’, Administration, 66(2), pp.9–31 and M. Byrne and M. Norris (2018), ‘Procyclical social housing and the crisis of Irish housing policy: marketization, social housing, and the property boom and bust’, Housing Policy Debate, 28(1), pp.50–63. 481 Government of Ireland (July 2016), Rebuilding Ireland: Action Plan for Housing and Homelessness, p.38. HAP is a form of social housing support whereby the local authority pays rent to a private landlord on behalf of those households 482 IHREC (20 August 2019), ‘Human Rights and Equality assessed as having a social housing need. The government Commission uses legal powers in successful challenge of aims to provide 83,760 social housing homes via HAP daft.ie discriminatory rental adverts’. The Commission is between 2016 and 2021 as part of the Rebuilding Ireland commissioning a scoping study on discrimination on the strategy. During this time, only 33,617 homes will be built, housing assistance ground under the Equal Status Acts while 6,830 will be bought and 10,036 will be leased by the 2000–2018. This study will be completed in 2020 and local authorities or the voluntary housing associations. See published on www.ihrec.ie. For further discussion on the HAP, Department of Housing, Planning, and Local Government see R. Hearne and M. Murphy (2017), Investing in the Right to (2016), Rebuilding Ireland: Accelerate Social Housing. a Home: Housing, HAPs and Hubs.

95 IHREC CERD Submission | October 2019 population, particularly Romanians and people from African countries; ʽThe Commission is increasingly supporting • People whose nationality is other individuals who have been than Irish or British are considerably overrepresented in the private rented discriminated against based sector and are particularly affected by on their receipt of HAP. entry barriers to the mortgage market.483

Discrimination and Ireland is experiencing a housing crisis with inequality in housing unprecedented levels of homelessness,484 and the Commission is alarmed by evidence that a disproportionately high number of The Commission wishes to inform families of migrant origin are at risk of and the Committee of the clear evidence are experiencing family homelessness.485 of discrimination against, and higher A recent study demonstrates that some risks of homelessness amongst, the 10% of people accessing an emergency minority ethnic population in Ireland. accommodation service in Dublin were from countries within the EEA, while The Commission-funded Discrimination a further 12% were from non-EEA and Inequality in Housing in Ireland countries.486 It has also been documented report provides evidence that:

• ‘Black’ respondents are more than 483 R. Grotti, H. Russell, É. Fahey, and B. Maître (June 2018), five times more likely to report housing Discrimination and Inequality in Housing in Ireland (IHREC and discrimination than ‘White Irish nationals’; ESRI). 484 Figures from the Department of Housing, Planning, • Even after education, employment status, and Local Government demonstrate that, as of July 2019, there were 10,275 people accessing emergency homeless and housing tenure are taken into account, accommodation in Ireland including 1,721 families and ‘Black people’ remain 3.5 times more likely 3,778 children. See Department of Housing, Planning, and to be discriminated against with respect Local Government, Homelessness Report July 2019. In to housing than ‘White Irish people’; December 2014, there were 407 families with 880 children and 2,310 persons without children in emergency homeless accommodation. See Department of Housing, Planning, • ‘Non-EU nationals’ are more likely to and Local Government, ‘Breakdown of homeless persons experience housing deprivation than in emergency accommodation during the week 22 to 28 ‘Irish nationals’ (1.7 times as likely); December 2014’. 485 Dublin Region Homeless Executive (April 2018), A Report on the 2016 And 2017 Families Who Experienced • ‘Non-EU nationals’ are more likely to live in Homelessness in the Dublin Region, p.11 and Focus Ireland overcrowded accommodation compared to (2019), Family Homelessness in Dublin: Causes, Housing ‘Irish nationals’, even when they are within Histories, and Finding a Home-Full Report. 486 In 20% of cases, the individuals’ origin is listed the same income group (2.5 times as likely); as unknown. The study uses administrative data from the Dublin Region Homeless Executive’s Pathway • People whose nationality is Accommodation and Support System. The greatest number other than Irish are substantially of clients accessing emergency accommodation from non- EEA countries were from Nigeria (381), Somalia (136), and overrepresented among the homeless the Democratic Republic of Congo (81). See R. Waldron, B. O’Donoghue-Hynes, and D. Redmond (2019), ‘Emergency

IHREC CERD Submission | October 2019 96 that lone parent households led by women received information that the HRC is used are significantly more susceptible to as a criterion for access to emergency homelessness than other family types.487 accommodation.490 At the Civil Society Forum, the Commission also heard evidence of the difficulties experienced by some migrant ʽ and second-generation single parents and a disproportionately high adults without children in qualifying for this number of families of condition, due to the requirements to prove migrant origin are at risk of a right to reside and a local connection.491 and are experiencing family Overall, the discrimination and inequality homelessness. faced by minority ethnic groups take place within the broader context of anti-immigrant The Commission notes the findings of the and anti-refugee discourses relating to recent report, Diverse Neighbourhoods: An access to housing. Recent Commission- Analysis of the Residential Distribution of funded research has highlighted that online Immigrants in Ireland, which found that people debates on refugee quotas in Ireland are often with poor English language proficiency are less punctuated with comments that cast migrants advantaged, with half of Ireland’s population as unworthy recipients of public funds and with poor English language skills found in blame them for the current housing crisis.492 just 135 of 3,409 electoral divisions.488 • As noted previously in this submission, the HRC is a qualifying condition for social The Commission recommends a review welfare payments. Although applied to all of the Housing Acts and associated applicants ‘regardless of their nationality,’ policy instruments to reflect the it has a disproportionate impact on changing and increasingly diverse migrant families, Traveller families, and nature of the population in need of Roma families.489 The Commission has social housing and homelessness supports, and to address the discrimination and inequalities faced by minority ethnic groups. homeless shelter use in the Dublin region 2012–2016: Utilizing a cluster analysis of administrative data’, Cities, 94, pp.143–152. 487 National Women’s Council of Ireland (April 2018), The Impact of Homelessness on Women’s Health. 488 Furthermore, the population with poor English- 490 See IHREC, Submission to the United Nations language proficiency is more likely to reside in areas with Committee on the Elimination of Discrimination Against average levels of affluence/deprivation and low tertiary Women on Ireland’s Combined Sixth and Seventh Reports, educational attainment. See É. Fahey, H. Russell, F. p.63. McGinnity, and R. Grotti (2019), Diverse Neighbourhoods: 491 A lack of awareness about rights and how to get on the An Analysis of The Residential Distribution of Immigrants in housing list amongst minority ethnic and migrant groups, Ireland, (Department of Justice and Equality and ESRI). the practice of night-by-night accommodation, particularly 489 For further information on the HRC, see section 9. The for people who do not have their status regularised, and Commission also previously highlighted this issue to CEDAW the direct entry of people coming to Ireland through the in 2017. See IHREC, Submission to the United Nations family reunification process into homelessness were also Committee on the Elimination of Discrimination Against highlighted as issues of concern at the Commission’s Civil Women on Ireland’s Combined Sixth and Seventh Reports, Society Forum in May 2019. p.92. 492 Siapera et al., Hate Track, pp.4–38.

97 IHREC CERD Submission | October 2019 Traveller accommodation of Travellers in the private rental sector.

In June 2019, the Commission invoked Recent Commission-funded research, its statutory powers to invite every local Discrimination and Inequality in Housing in authority in the State to undertake an Ireland, demonstrates that Travellers face equality review493 on their provision of high levels of discrimination, overcrowding, Traveller-specific accommodation.494 and higher risks of homelessness.497 The existence of discrimination is also evident This was motivated by the evidence arising in the increase in the number of Traveller from the Commission’s legal casework of families sharing housing and, despite the the persistent discrimination and inertia general decline since 2002, the recent growth towards the provision of accommodation in the total number of Traveller families living to the Traveller community.495 In particular, on unauthorised sites.498 Figures from 2018 the Commission remains concerned show that local authorities did not draw down at the lack of provision of Traveller- the total funding allocated for Traveller- specific accommodation, the persistent specific accommodation.499 Furthermore, underspend of the Traveller accommodation there is a clear increase in the number of budget, the conditions of many Traveller Traveller families living in private rented accommodation sites,496 and the experiences accommodation.500 The Commission is

493 Under section 32 of the Irish Human Rights and 497 Grotti et al., Discrimination and Inequality in Housing Equality Commission Act 2014, the Commission can ‘invite in Ireland. The report found the following: Travellers are a particular undertaking, group of undertakings or the 22 times more likely than other white-Irish respondents undertakings making up a particular industry or sector to report that they have experienced discrimination in thereof’ to conduct an equality review. access to housing; while Travellers represent less than 1% 494 The statutory equality reviews focus on failures of the Irish population, they make up more than 9% of the nationally to draw down the ring-fenced capital budget homeless population; the vast majority (84%) of Travellers for Traveller-specific accommodation and oblige local living in caravan or mobile home accommodation reside authorities to examine whether any such failings may be due in over-crowded conditions; only 16% of Travellers owned to discriminatory practices or policies under the Housing their own home, compared to 72% for the non-Traveller (Traveller Accommodation) Act 1998 and the Equal Status population; and Travellers are exceptionally reliant on social Acts. See IHREC (28 June 2019), Human Rights and Equality housing, with just under half (49%) being social renters. Commission Launches National Review into Council Traveller 498 The number of Traveller families sharing housing Accommodation Provision. increased from 249 to 1,115 between 2002 and 2017, 495 The Commission also notes evidence of substandard accounting for 10% of the total number of Traveller families living conditions on many Traveller accommodation sites as of 2017. The total number of Traveller families living on and the lack of progress in transient sites, despite a formal unauthorised sites increased from 422 to 585 between 2009 commitment from government since the 1995 Report of and 2017. IHREC analysis of the Department of Housing, the Taskforce of the Travelling Community. The European Planning and Local Government, Annual Count Figures Committee of Social Rights has recently concluded that 2002–2017. there is still ‘a not insubstantial shortfall’ of transient sites 499 Over the past ten years, 2009–2018, the Department across the country and, of 1,000 transient bays identified as has recouped in excess of €75 million to local authorities needed by the 1995 taskforce, there are only 54 in existence from a capital budget of €128.8 million. See Seanad Éireann and not all function as proper transient sites. Furthermore, (6 March 2019), Traveller Accommodation: Statements. Ten only five local authorities (15%) provide transient sites. See local authorities did not draw down any funding for Traveller European Roma Rights Centre (ERRC) v. Ireland, Complaint No. accommodation in 2018, including in counties with cities 100/2013. and particularly large populations such as Galway and Cork. 496 On its State visit, the ECRI delegation expressed alarm Department of Housing, Planning and Local Government (19 at the deplorable conditions in which some Travellers were February 2019), Traveller Accommodation. living. See ECRI, ECRI Report on Ireland, p.23. 500 From 2002 to 2017, the number of Traveller families

IHREC CERD Submission | October 2019 98 concerned that this increase is not a precise reflection of the accommodation preferences 501 ʽ of the Traveller community and does Figures from 2018 show that not fulfil the State’s obligations to provide local authorities did not 502 culturally appropriate accommodation. draw down the total funding The European Committee of Social Rights allocated for Traveller-specific has found that despite some improvements, accommodation. Furthermore, Ireland is in continued violation of Article there is a clear increase in the 16 of the Charter,503 with ongoing evidence of a substantial deficiency in providing number of Traveller families accommodation for Travellers.504 The living in private rented Commission also notes the publication of accommodation. the report of the Traveller Accommodation Expert Review Group,505 which documents clear shortcomings in the provision of accommodation, including the quality of available information on the accommodation needs and preferences of the Traveller in the private rented sector increased from 162 to 2,387, population. The report indicates that 54% representing 21% of the total number of Traveller families. of accommodation output between 2006 IHREC analysis of the Department of Housing, Planning and Local Government, Annual Count Figures 2002–2017. and 2018 involved the refurbishment or 501 The Irish State recently argued that the increase in extension of existing Traveller-specific the number of Travellers accommodated in private rented units rather than new output.506 The review accommodation is in line with preferences expressed by recommends a range of short-, medium-, Travellers and represents success in the State’s efforts to improve the status of the Traveller community. European and long-term measures including Committee of Social Rights (14 November 2014), European encouraging local authority chief executives Roma Rights Centre v Ireland: Further Response from the to use their emergency powers to provide Government. housing, and the introduction of legislative 502 The Commission also notes the barriers to the provision of Traveller specific accommodation and the provisions to suspend the reserved inadequacies in the procedure to assess accommodation function of elected members for approval of needs of the Traveller community. See Joyce et al., Traveller proposals for Traveller accommodation.507 Accommodation Expert Review, section 3. 503 In December 2015, the Committee found that Irish law and practice breaches the human rights of Travellers on the following grounds: insufficient provision of accommodation for Travellers; many Traveller sites are in an inadequate condition; the Criminal Justice (Public Order) Act 1994 (as other legislation that affects the provision and delivery of amended) provides for inadequate safeguards for Travellers accommodation for Travellers. The aims of the Expert Group threatened with eviction; the Housing (Miscellaneous were to review the effectiveness of the 1998 Act, determine Provisions) Act 1992 (as amended) provides for inadequate if it provides a robust legislative basis for meeting the safeguards for Travellers threatened with eviction; and current and future accommodation needs of the Traveller evictions are carried out in practice without the necessary Community, and to review other legislation that impacts on safeguards. See European Roma Rights Centre (ERRC) v. the delivery of Traveller-specific accommodation. See Joyce Ireland, Complaint No. 100/2013. et al., Traveller Accommodation Expert Review. 504 European Committee of Social Rights (December 506 Only 14.7% of output involved the provision of new 2018), Follow-Up to Decisions on the Merits of Collective halting site bays, and 18.4% was for group housing scheme Complaints. units. See Joyce et al., Traveller Accommodation Expert 505 The group was established by the Minister of State Review, p.42. for Housing and Urban Development, Damien English T.D., 507 See Joyce et al., Traveller Accommodation Expert to review the Traveller Accommodation Act 1998, and Review.

99 IHREC CERD Submission | October 2019 The Commission notes the tenure, homelessness, and lack of access recommendations of ECRI that efforts to social housing and rent supplement to meet the accommodation needs of within the Roma community.509 Travellers should be increased, including by improving existing halting sites to meet Approximately 77% of Roma who participated decent and safe living standards, and by in the study lived in private rented providing adequate, accessible, suitable, and accommodation, 45% said they did not have culturally appropriate accommodation.508 enough beds in their accommodation, and 24% lived in households of eight or more • people. Thirty-seven per cent of respondents reported that they did not have a tenancy The Commission recommends that agreement, 7% of respondents were the State prioritise the implementation homeless, and 46% reported having been of the recommendations of the homeless at some stage of their lives.510 Independent Expert Review of Traveller Accommodation and European The application of Housing Circular Commission against Racism and 41/2012, as highlighted above, has also Intolerance. been reported as precluding many Roma people from accessing a range of housing supports, including homeless supports. For • Roma who do not meet the requirements relating to employment, a housing The Commission recommends the assessment cannot be completed.511 introduction of dissuasive sanctions for local authorities who fail to provide The Commission notes the Committee’s Traveller-specific and culturally general recommendations on the elimination appropriate accommodation in areas of discrimination against Roma including ‘to where there is a stated need. act firmly against any discriminatory practices affecting Roma, mainly by local authorities and private owners, with regard to taking Roma up residence and access to housing.’512

The Commission is concerned with the findings of the 2018National Roma Needs Assessment, which documented discrimination in accessing accommodation, severe overcrowding, poor quality accommodation, a lack of security of 509 Pavee Point Traveller and Roma Centre and Department of Justice and Equality, Roma in Ireland – A National Needs Assessment. 510 Pavee Point Traveller and Roma Centre and 508 ECRI also recommended the need for a solution to Department of Justice and Equality, Roma in Ireland – A the failure by local authorities to use funding allocated for National Needs Assessment, section 8. Traveller accommodation, including by imposing dissuasive 511 See Pavee Point Traveller and Roma Centre (2015), The sanctions on local authorities for failure to spend allocated National Roma Needs Assessment: Accommodation Briefing. funding, or shifting the responsibility for accommodation 512 Committee on Elimination Racial Discrimination (2000), from local authorities to a central housing agency. See ECRI , General Recommendation XXVII on Discrimination against ECRI Report on Ireland, p.23. Roma, p.3.

IHREC CERD Submission | October 2019 100 • of disaggregated administrative data, including specific data on the Roma The Commission recommends that the community. State take further specific, targeted measures to address barriers to access to housing for the Roma community.

The Commission notes there is currently no specific action in theNational Traveller and Roma Inclusion Strategy 2017–2021 on addressing the housing and accommodation issues affecting the Roma community.

•

The Commission recommends the development of Roma-specific, time- bound actions in the area of housing for inclusion in the National Traveller and Roma Inclusion Strategy 2017–2021.

The Commission is mindful of the need for additional administrative and survey data to document the impact of policies on housing outcomes and the reliance on private sector accommodation on minority ethnic communities, as well as any progress achieved in the provision of housing. This is most apparent in the case of the Roma community in Ireland, and the Commission notes the Committee’s recommendation that the State collects and reports data on the situation of the Roma community.513

•

The Commission recommends that the State progress the introduction of an ethnic identifier across the housing sector and the systematic publication

513 Committee on Elimination Racial Discrimination, General Recommendation XXVII, p.5.

101 IHREC CERD Submission | October 2019 Section 12 Gender-based Violence (Articles 2(2), 4(a), 5(b)) Violence against and the Committee on the Elimination of women and girls Discrimination against Women (CEDAW) have raised concerns about the limited data and research available in practice, as The Commission notes the right of people well as reported inaccuracies by An Garda to be protected from violence under Article Síochána in the recording and classification 5 of CERD, as well as the Committee’s focus of crimes involving domestic violence.518 on mainstreaming a gender perspective.514 Furthermore, there is evidence that The Irish government ratified the Council sexual and domestic violence offences of Europe Convention on preventing and are chronically under-reported by victims combatting violence against women and from minority ethnic communities, due to, domestic violence (the Istanbul Convention) among other reasons, the limited availability on 8 March 2019.515 In welcoming this of reliable support services, accessible ratification, the Commission identified procedures, and specialised practitioners.519 priority areas for action by the State to ensure the adoption of a comprehensive and coordinated response to violence against women and girls, including women ʽ...there is evidence that and girls from minority ethnic groups.516 sexual and domestic violence Existing evidence indicates that violence offences are chronically against women and girls is prevalent in under-reported by victims Ireland.517 However, both the Commission from minority ethnic communities, due to, among other reasons, the limited 514 See for example, The Committee (20 March 2000), General Recommendation No. 25 on Gender-Related availability of reliable Dimensions of Racial Discrimination. support services, accessible 515 Department of Justice and Equality (8 March 2019), ‘Minister Flanagan announces ratification of the Istanbul procedures, and specialised Convention by Ireland on International Women’s Day’. The Commission repeatedly called on the State to ratify this practitioners. Convention. See for example, IHREC (5 November 2015), ‘Statement on Ireland’s signature of Council of Europe Convention on preventing and combating violence against women (Istanbul Convention)’, and IHREC, Ireland and the Convention on the Elimination of All Forms of Discrimination Against Women, p.11. 516 IHREC, ‘Statement on the ratification of the Council of Europe Convention on preventing and combating violence sexual harassment and sexual violence’. against women and domestic violence’. 518 IHREC, Ireland and the Convention on the Elimination 517 EU Agency for Fundamental Rights (2014), Violence of All Forms of Discrimination Against Women, p.59; IHREC Against Women: An EU Wide Survey, (Luxembourg: (2018), Submission to the Commission on the Future Publications Office of the European Union). A recent survey of Policing; and CEDAW (9 March 2017), Concluding has reported that Ireland has the highest level of claimed Observations on the Combined Sixth and Seventh Periodic sexual harassment in Europe, with 32% of Irish women Reports of Ireland, CEDAW/C/IRL/CO/6-7, p.7. between the ages of 18 and 34 saying they had experienced 519 IHREC (February 2017), Observations on the Criminal some form of sexual harassment in the last 12 months. See Justice (Victims of Crime) Bill 2016, p.8 and Irish Observatory Department of Justice and Equality (9 May 2019), ‘Minister on Violence Against Women (September 2018), Submission: Flanagan launches major national awareness campaign on The Policing Authority – Policing Priorities for 2019, pp.4–5.

103 IHREC CERD Submission | October 2019 Such underreporting contributes to deficits received information that due to demands in the data available on the experiences on services, eligibility for social security is of violence among particular groups. The used as a criterion for access to emergency Department of Justice and Equality has accommodation, which presents difficulties recently announced its plan to undertake for women and girls from migrant, Roma, a new national survey on the prevalence of and Traveller communities who cannot sexual violence in Ireland, which will take satisfy the HRC.524 The Commission is up to five years to complete.520 However, also aware that access to such services the Commission understands that the is impeded by the inadequate provision inclusion of a representative sample of of quality interpreting services.525 minority ethnic and other groups will only be considered after the completion of the • first survey. This raises concerns about the specific timelines and commitments relating The Commission recommends that the to this second phase and the potential for State adopt measures to encourage significant delays in the availability of the and facilitate the reporting of crimes, data, as well as concerns about the extent including special measures for women to which the data will be comparable.521 and girls from minority ethnic groups.

UN treaty monitoring bodies have repeatedly called on Ireland to strengthen its specialist • supports for victims of domestic violence,522 but the Commission has ongoing concerns The Commission recommends that about the multiple barriers faced by the new Sexual Violence Survey should victims in accessing services. Recent facilitate the reporting of robust and reports indicate that Ireland has less than sufficient data on the experiences of a third of the number of domestic violence women and girls from minority ethnic refuge spaces it is required to have under groups in a timely manner.526 European standards.523 The Commission has

Agency is applying a standard of one shelter space per 520 Department of Justice and Equality (10 January 2019), 10,000 of the female population. However, the Council ‘Department of Justice and Equality and the Central Statistics of Europe has set the standard at one place per 7,500 Office sign Memorandum of Understanding on the undertaking of the population and one family place per 10,000 of the of a national sexual violence prevalence study’ and CSO (10 population. See WAVE – Women against Violence Europe January 2019), ‘CSO to oversee new national survey on the (March 2018), WAVE Country Report 2017: The Situation prevalence of sexual violence in Ireland’. of Women’s Specialist Support Services in Europe; Council 521 National surveys often build in booster samples of of Europe (September 2008), Combating Violence Against groups traditionally underrepresented or excluded from Women: Minimum Standards for Support Services, p.18; and standard national surveys within the main research design. Dáil Éireann Debate (28 March 2019), ‘Domestic violence’. For further information, see section 6. 524 See section 9 for more detail on the HRC. See also, 522 Committee on the Rights of the Child, Concluding IHREC, Ireland and the Convention on the Elimination of All Observations on the Combined Third and Fourth Periodic Forms of Discrimination Against Women, p.63. Reports of Ireland, p.8; Committee on Economic, Social, and 525 See sections 10 and 15 for further details on Cultural Rights, Concluding Observations on the Third Periodic interpreting services. Report of Ireland, p.7 and Human Rights Committee (19 526 The Commission notes that the Scoping Group on August 2014), Concluding Observations on the Fourth Periodic Sexual Violence Data has also recommended that ‘further Report of Ireland, CCPR/C/IRL/CO/4, p.3. consideration be given to the development of appropriate 523 According to Minister Zappone, the Child and Family supplementary data collection exercises to explore the

IHREC CERD Submission | October 2019 104 • families as a result of the physical space and conditions within which they are living.529 The Commission recommends that specialised services for victims of INIS has published guidelines on how the violence must be widely accessible and immigration system deals with cases accommodating of the diverse needs of where the victim’s immigration status is minority ethnic women. derived from or dependent on that of the perpetrator of domestic violence. However, the Minister has discretion in all decisions, The Commission is of the view that the and the arrangements do not apply to victims protection of women and girls from violence without permission to be in the State.530 should be central to immigration reform. It has been reported that migrant women are disproportionately represented in the figures of women presenting to frontline ʽ...the State is obliged to assess domestic and sexual violence services.527 the special reception needs of According to Women’s Aid, 19% of the women who engaged with its services in vulnerable persons, including 2018 were migrant women.528 Women in people who have been direct provision can also have additional risk subjected to violence, within factors, including heightened tensions within a reasonable time after an application for international

experiences of sexual violence for members of vulnerable protection is made. and minority groups in the population. This is because a national survey by its nature cannot achieve data to make any useful or meaningful conclusions in relation to small The Commission is also concerned about the groups’. See Scoping Group on Sexual Violence Data (April absence of gender guidelines and gender- 2018), Report of the Scoping Group on Sexual Violence Data. It is worrying that there is no confirmation as to sensitive asylum procedures applying whether the study of vulnerable and minority groups in the to the application and decision-making population will have a similar scope to the Sexual Violence processes of the International Protection Study (SVS) national survey, when it will be completed, and Office (IPO) and the International Protection what resources will be invested. Discussions with the State 531 indicate that the study of vulnerable and minority groups Appeals Tribunal (IPAT). As recognised may follow after the SVS national study, which would result by the Council of Europe, introducing a in significant delay to the development of the evidence base gender perspective into procedures allows for policy and provision. for the specific types of persecution and 527 AkiDwA (31 May 2019), Submission to the Joint Committee on Justice & Equality: Direct Provision & the protection concerns that affect women International Protection Application Process, p.3. Women’s and girls to be taken into account.532 Aid has highlighted that it is important not to draw conclusions about levels or severity of domestic violence amongst particular minority ethnic communities given some appear ‘over-represented’ in refuge provision. Instead, 529 AkiDwA, Submission to the Joint Committee on Justice it shows that minority women face additional barriers to & Equality, pp.3–4. obtaining long-term safety and lack other possible options 530 INIS, Victims of Domestic Violence Immigration than emergency accommodation. Guidelines. 528 This data relates to its One to One and Dolphin House 531 See Article 60(3) of the Istanbul Convention. services. See Women’s Aid (April 2019), Impact Report 2018, 532 Council of Europe (2019), ‘Protecting migrant women, p.9. refugee women and women asylum seekers from gender-

105 IHREC CERD Submission | October 2019 Concerning gender-sensitive reception • procedures and support services for asylum seekers,533 the Commission notes The Commission recommends the that the State is obliged to assess the introduction of a clear legal framework special reception needs of vulnerable to provide pathways to lawful residence persons, including people who have been for victims of domestic violence who subjected to violence, within a reasonable are undocumented.538 time after an application for international protection is made.534 However, there have been criticisms by organisations • supporting asylum seekers in Ireland that these vulnerability assessments are The Commission recommends that not taking place at the beginning of the the State take all necessary legislative asylum procedure, as required.535 The and other measures to ensure that Department of Justice and Equality has the needs of victims of violence are confirmed that new national standards for identified and addressed throughout accommodation centres for asylum seekers the asylum procedure, including will support the process of ensuring that by introducing gender-sensitive reception procedures and support services guidelines, reception procedures, and are appropriately gender-sensitive.536 support services.

• The Commission is aware of reports on the The Commission recommends that existence of negative attitudes towards the Immigration Guidelines for Victims victims among some members of An Garda of Domestic Violence are placed on a Síochána.539 In 2017, CEDAW recommended legislative basis, to ensure that victims, that Ireland intensify existing efforts to whose residence status depends on the combat gender-based violence against perpetrator of domestic violence, can women by ensuring that prosecutors and access autonomous residence permits the police are properly trained to identify, irrespective of the duration of the investigate, and prosecute cases, particularly relationship.537 cases involving violence targeted at Traveller, Roma, and migrant women and girls.540 Broader information and education measures based violence’. 533 See Article 60(3) of the Istanbul Convention. 534 See Articles 21–22 of the Reception Conditions Directive (recast) (2013/33/EU). For further information Discrimination Against Women, p.61 and The Committee on the requirements under this Directive and vulnerability (2011), Concluding Observations of the Committee on the assessments, see section 13. Elimination of Racial Discrimination: Ireland, CERD/C/IRL/ 535 Irish Refugee Council (27 May 2019), ‘Refugee CO/3-4, p.3. organisations highlight absence of vulnerability assessment in 538 See section 9 for the Commission’s recommendation Irish asylum procedure’. that a regularisation scheme for undocumented people is 536 Department of Justice and Equality (10 July 2019), developed in Ireland. ‘Written answers – gender recognition’. 539 Women’s Aid, Impact Report 2018, p.9 and Garda 537 This recommendation has previously been raised Síochána Inspectorate, Crime Investigation, p.17. by the Commission and the Committee. See IHREC, 540 CEDAW, Concluding Observations on the Combined Ireland and the Convention on the Elimination of All Forms of Sixth and Seventh Periodic Reports of Ireland, p.7.

IHREC CERD Submission | October 2019 106 are also necessary to raise awareness woman or girl from the State for FGM. among the public about the responsibility The Second National Intercultural Health of the State to prevent and combat violence Strategy 2018–2023 recognises the against women and girls. The Commission need to continue the development notes the recent launch of a three-year and implementation of education and national awareness campaign on sexual public campaigns to raise awareness harassment and sexual violence by the about this legal framework.543 Department of Justice and Equality.541 There is a specialised treatment centre • in Dublin city centre for women and girls who have experienced FGM, operated by The Commission recommends that the Irish Family Planning Association (IFPA) the complex and intersectional issues and funded by the HSE.544 The IFPA has relating to violence against minority noted that despite its awareness-raising ethnic women and girls are included in work, challenges remain in ensuring the pre-service and ongoing training of access to this service, particularly for An Garda Síochána. asylum-seeking women. In particular, the IFPA has raised its concerns that women in the direct provision system are • unaware that a free treatment service for FGM is available in Ireland. These women The Commission recommends that experience difficulties in accessing targeted public information and childcare and meeting the required education measures on violence transport costs to access the service, against women and girls should particularly when they are travelling from be developed for minority ethnic rural areas and have multiple counselling communities, including women and sessions.545 Cultural barriers and the fear girls in the international protection of the unknown have also been described system. as preventing many women and girls from accessing services for FGM.546 Female genital mutilation

An estimated 5,795 women and girls 543 HSE, Second National Intercultural Health Strategy living in Ireland have undergone FGM.542 2018–2023, p.25. The Criminal Justice (Female Genital 544 As referenced in the State report. See The Committee, Combined Fifth to Ninth Periodic Reports Mutilation) Act 2012 made it a criminal Submitted by Ireland Under Article 9 of the Convention, p.11. offence to perform FGM or to remove a 545 IFPA (May 2019), Submission on Direct Provision to the Oireachtas Committee on Justice and Equality, p.4; IFPA (26 June 2017), Supplementary Information on Ireland in Relation to Sexual and Reproductive Health and Rights for the Consideration of the Committee Against Torture at its 61st 541 Department of Justice and Equality, ‘Minister Flanagan session (24 July–11 August 2017), pp.10–11; and IHREC, launches major national awareness campaign on sexual Ireland and the Convention on the Elimination of All Forms of harassment and sexual violence’. Discrimination Against Women, p.65. 542 This figure was compiled by synthesising Census 2016 546 S. Pollak (30 April 2019), ‘Female genital mutilation data with UNICEF global prevalence estimations from 2016. victims not availing of health services – charity’, The Irish See AkiDwA (January 2018), CERD Submission, p.2. Times.

107 IHREC CERD Submission | October 2019 The Commission acknowledges the ongoing efforts of civil society in laying ʽ the groundwork for the development of a The Commission framework for the coordination of services acknowledges the ongoing on FGM,547 and the recent calls for the State to establish an interdepartmental efforts of civil society in committee tasked with the role of drawing laying the groundwork up a national action plan to combat for the development FGM.548 However, a government-led coordinated plan and interagency group of a framework for the on FGM have yet to be established. coordination of services on FGM, and the recent calls • for the State to establish an The Commission recommends that interdepartmental committee the State work in collaboration with tasked with the role of communities affected by Female Genital Mutilation to raise awareness drawing up a national action about and support access to the plan to combat FGM. existing specialist services and to develop additional regional services and peer-led support.

•

The Commission recommends that the State build on the work carried out by civil society to advance the publication of a comprehensive national action plan on Female Genital Mutilation.

547 AkiDwA (2016), Towards a National Action Plan to Combat Female Genital Mutilation 2016–2019. See also, IHREC, Ireland and the Convention on the Elimination of All Forms of Discrimination Against Women, p.65. 548 HSE, Second National Intercultural Health Strategy 2018–2023, p.105.

IHREC CERD Submission | October 2019 108 Section 13 International Protection (Articles 2, 5) The international protection notes that the Ombudsman has called application process for the complaints and investigations remit of his Office to be extended to the administrative processes through As recommended by the Commission,549 which asylum applications are assessed, the International Protection Act 2015 including the issue of timeframes.558 introduced a single procedure whereby an applicant for international protection • makes one application and has all grounds determined in a single process.550 Key The Commission is concerned that objectives of the law were to establish the almost four years after the passing IPO,551 IPAT, and to improve the efficiency of of the International Protection Act the international protection system. At the 2015, excessive waiting times for the end of 2018, there were 5,700 applications processing of international protection for international protection, 1,500 of which applications persist, leading to were waiting to have an interview scheduled dependency and disempowerment in the IPO.552 The Department of Justice amongst those seeking protection and and Equality estimated that it was taking impeding prospects of integration.559 19 months from the point of applying for protection to schedule an interview in early 2018,553 and this was reduced to 15 International protection applicants are months by June 2019.554 The IPO made provided with legal assistance to progress 3,091 recommendations in 2018, up from their application, the resourcing of 1,938 in 2017.555 On average, it takes 23 which has been subject to criticisms. A weeks to process appeals to the IPAT.556 2015 review of the protection process560 Although the Commission acknowledges progress in this area in recent years,557 it

558 Joint Committee on Justice and Equality (25 September 2019), ‘Direct provision: discussion with 549 IHREC (10 December 2014), Policy Statement on the Ombudsman’. System of Direct Provision in Ireland, p.18. 559 IHREC (April 2019), Submission to the Universal Periodic 550 See Department of Justice and Equality (31 December Review of the UN Human Rights Council: Second Cycle Mid- 2016), ‘The International Protection Act 2015’. Term Review, p.11; UNHCR Ireland (25 April 2018), ‘UNHCR 551 In June 2019, about 149 staff worked in the IPO with calls for action to cut Irish asylum waiting times’; and C. 70 individuals on the legal processing panel, see Dáil Éireann Gallagher (14 October 2019), ‘Government urged to speed debate (27 June 2019), ‘International protection’. up asylum application process’, The Irish Times. This issue 552 Department of Justice and Equality (2018), Immigration was also raised at the Commission’s Be Heard on CERD in Ireland: Annual Review 2018, p.37. consultation and the Civil Society Forum. In June 2019, 553 This waiting time refers to non-prioritised applications, NASC stated before a Joint Oireachtas Committee that ‘the see Dáil Éireann debate (30 January 2018), ‘Asylum wait times with no upper limit is one of the primary issues applications’. raised to us by applicants’ and advocated for additional staff 554 Dáil Éireann (27 June 2019), ‘International protection’. and resources to be assigned to the IPO. See NASC (12 June 555 Dáil Éireann, ‘International protection’. 2019), ‘Opening statement to the Oireachtas Joint Committee 556 Dáil Éireann, ‘International protection’. on Justice and Equality hearing on direct provision and the 557 The Department has also committed to further protection process’. improving the processing rate for international protection 560 Working Group to Report to Government on applications, including the time taken for first instance Improvements to the Protection Process, including Direct decisions in 2019. See Department of Justice and Equality, Provision and Supports to Asylum Seekers (June 2015), Final Immigration in Ireland, p.58. Report.

IHREC CERD Submission | October 2019 110 recognised the value of early legal advice561 • and recommended the proper resourcing of the Civil Legal Aid Board to ensure that The Commission recommends that applicants have access to effective legal the State ensure effective legal advice advice before the first instance interview.562 for international protection applicants This reflects more recent comments by the at an early stage through the Civil Chief Justice that there is ‘a compelling case Legal Aid Board, to support them in for a very significant increase’ in civil legal aid progressing their application. services.563 Stakeholders continue to raise the under-resourcing of legal assistance at an early stage as a key issue in the international Under the Asylum Procedures Directive protection system.564 The Commission’s (recast), States must ensure that vulnerable Civil Society Forum in May 2019 heard applicants, including applicants with a concerns regarding the quality and amount disability, are provided with adequate of legal advice provided at an early stage support throughout the international in the process. Similar concerns were also protection process. These special raised at the Oireachtas Joint Committee procedural guarantees should be put in on Justice and Equality on 29 May 2019.565 place before a first instance decision is taken and should include the creation of the conditions necessary to ensure that applicants can effectively access procedures and substantiate their application for international protection.566 The Commission notes that Ireland 561 ‘Early legal advice, i.e. prior to the first instance interview, is the most effective and ultimately cost-saving has not opted into this Directive. form of legal advice, in that it increases the likelihood of applicants receiving an appropriate first instance decision, • concluding the procedure in the case of applicants who are recognised, and facilitating an expeditious appeals decision in the case of applicants who are not recognized’. See The Commission calls on the State Working Group to Report to Government on Improvements to opt in to the Asylum Procedures to the Protection Process, including Direct Provision and Directive (recast) and introduce Supports to Asylum Seekers, Final Report, p.117. measures to support people with 562 See Working Group to Report to Government on Improvements to the Protection Process, including Direct disabilities and other special procedural Provision and Supports to Asylum Seekers, Final Report, needs in their application for pp.118–119. international protection. 563 Law Society Gazette, ‘“Moral argument” for civil legal aid boost – Clarke’. 564 The Irish Refugee Council highlights that ‘only 11% of the Legal Aid Board’s civil legal aid budget is spent on advice for international protection applicants.’ See Irish Refugee Council (May 2019), Submission to Joint Oireachtas Committee on Justice and Equality, p.27. 565 See Joint Committee on Justice and Equality (29 May 2019), Direct Provision and the International Protection Application Process: Discussion (Resumed). Ms Donnah Vuma, a protection applicant, gave evidence before the 566 Directive 2013/32/EU of the European Parliament and Committee, stating: ‘We do not have proper legal advice. of the Council of 26 June 2013 on common procedures for While legal aid is available in principle, one may only get to granting and withdrawing international protection (recast), see one’s solicitor once before an interview’. Recital 29.

111 IHREC CERD Submission | October 2019 Immigration detention •

There are no designated detention The Commission is of the view575 that centres for people seeking international immigration detention should not be protection. Under the international punitive and should only be used as an protection framework, applicants may be individual measure that is exceptional, detained at any Garda Station or Cloverhill proportionate, and necessary. Prison.567 The number of people detained in prison under broader immigration laws568 remains steady:569 414 committals, • involving 406 detainees falling under this category for 2018.570 There were The Commission recommends that the on average 11 people detained daily for operation of immigration detention immigration-related matters in 2018.571 should be regularly evaluated.

A new dedicated and secure facility for immigrant detainees is due to open at Developments in direct Dublin Airport.572 The Commission has also provision since 2011 been informed that a separate immigration detention unit is due to open in Cloverhill prison.573 The Commission reiterates its call In its 2011 Concluding Observations, the for immigration detention facilities to adhere Committee recommended that the State to human rights standards, including the right ‘take all necessary measures to improve’ to appropriate legal advice, the principle of the living conditions of asylum seekers and detention as a measure of last resort, the conduct a review of the direct provision need for clear oversight and accountability system.576 Following the Commission’s measures, and the right to information establishment, its first programme of in the language and format required.574 work in 2014 was focused on direct provision, and it echoed the Committee’s call for a review of the system.577

567 See Regulation 31 of the European Communities This review was subsequently carried out by (Reception Conditions) Regulations 2018 that amended the International Protection Act 2015 (Places of Detention) Regulations 2016. 568 This includes persons detained for offences outside of international protection e.g. trafficking of persons. Treatment or Punishment (the CPT) provides that detained 569 See Irish Prison Service (2019), Annual Report, p.25. irregular migrants should have access to legal aid and 570 Corresponding figures for previous years are: 418 should, without delay, be expressly informed of their rights committals involving 396 detainees (2017) and 421 and the procedure applicable to them, in a language they committals involving 408 detainees (2016). See website of understand. They should have the lawfulness of their the Asylum Information Database. deprivation of liberty decided speedily by a judicial body. See 571 See Irish Prison Service (2019), Annual Report, p.25. CPT (2017), Factsheet on Immigration Detention. 572 C. O’Keeffe (12 June 2019), ‘Dedicated immigration 575 IHREC (July 2017), Ireland and the Convention against facility due to open at Dublin Airport’, The Irish Examiner. Torture, p.15. 573 Department of Justice and Equality civil society 576 The Committee (4 April 2011), Concluding Observations briefing on labour market access for international protection of the Committee on the Elimination of Racial Discrimination: applicants, held in Dublin on 28 July 2018. Ireland, para 20. 574 Detailed guidance from the European Committee 577 IHREC, Policy Statement on the System of Direct for the Prevention of Torture and Inhuman or Degrading Provision in Ireland.

IHREC CERD Submission | October 2019 112 the Working Group to Report to Government on Improvements to the Protection Process, ʽ including Direct Provision and Supports ...direct provision centres for Asylum Seekers and its report, The are experiencing significant McMahon Report, was published in 2015.578 The McMahon Report set out detailed capacity issues. These issues recommendations, and the State claims are being exacerbated by the that 98% of these recommendations have housing crisis, which has been implemented.579 This figure has been disputed by several commentators, including meant that residents who the chair of the working group.580 For have been granted refugee example, the State report provides details on status are unable to leave. improvements to living conditions with the introduction of self or communal catering. itself to common minimal standards for However, these improvements have not been material reception conditions for asylum made in all centres,581 and notably the State- seekers. New national standards for owned centres have not provided access accommodation offered to people in the to a food hall and/or cooking facilities.582 protection process were also published in August 2019 585 and resulted in calls for As recommended by the Commission an independent oversight and inspection before a parliamentary committee,583 the mechanism to be established to monitor State opted-in to the Reception Conditions their implementation in practice.586 The Directive (recast) in 2018,584 committing Commission remains concerned that direct provision centres are experiencing significant capacity issues.587 These issues are being

578 Working Group to Report to Government on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers, Final Report. Regulations 2018 transposed the Reception Conditions 579 See Committee on the Elimination of Racial Directive (recast) (2013/33/EU) into Irish law. Discrimination, Combined Fifth to Ninth Periodic Reports 585 Department of Justice and Equality (2019), National Submitted by Ireland under Article 9 of the Convention, and Standards for Accommodation Centres. Note, the McMahon Department of Justice and Equality (July 2017), Third and Report specifically called for standards in Direct Provision, Final Progress Report on the Implementation of the Report’s against which inspection should occur. See Working Recommendations. Group to Report to Government on Improvements to the 580 NASC (December 2017), Working Paper on Progress Protection Process, including Direct Provision and Supports of Implementation of the McMahon Report, p.5. See also, L. to Asylum Seekers, Final Report, p.198. Thornton (2019), Submission to the Oireachtas Committee 586 See for example, Children’s Rights Alliance (16 August on Justice and Equality on Direct Provision and Human Rights, 2019), National Standards for Accommodation Potentially at p.4 and Joint Committee on Justice and Equality (22 Transformative for Families in the Protection Process but Need May 2019), Direct Provision and the International Protection for Independent Inspectorate Essential for their Success and Application Process: Discussion. Doras, ‘Experiences of living in direct provision: a case study 581 NASC (December 2017), Working Paper on Progress of of Mount Trenchard accommodation centre’ (Limerick: The Implementation of the McMahon Report, p.4. Community Foundation for Ireland, 2019), p.5. 582 Joint Committee on Justice and Equality (22 May 587 Ombudsman (March 2019), The Ombudsman and 2019), Direct Provision and the International Protection Direct Provision: Update for 2018 – A Commentary by the Application Process: Discussion. Ombudsman, p.7. There was an increase in the number of 583 Joint Oireachtas Committee on Justice and Equality people seeking asylum during 2018. The number in Direct (9 May 2018), Access to the Labour Market for International Provision grew from 5,687 (of which 591 were in emergency Protection Applicants: Discussion. accommodation) on 1 January 2018 to 6,148 (of which 442 584 The European Communities (Reception Conditions) were in emergency accommodation) on 1 January 2019.

113 IHREC CERD Submission | October 2019 exacerbated by the housing crisis, which has difficulties accessing medical treatment,593 meant that residents who have been granted and delays in accessing legal advice. refugee status are unable to leave. There are currently approximately 850 people with an international protection status or permission to remain still living in direct provision.588 ʽOwing to the capacity issues in direct provision centres, Owing to the capacity issues in direct provision centres, the State has been the State has been providing providing emergency accommodation to emergency accommodation international protection applicants in hotels to international protection and guesthouses since September 2018. As of October 2019, 1,399 people were applicants in hotels and living in emergency accommodation across guesthouses since September Ireland.589 The Commission is concerned 2018. about reports of inadequate living conditions in emergency accommodation and the failure to ensure that asylum seekers are Noting comments by government assessed before being placed in the centres officials that it is not possible to apply the and provided with access to the necessary same standards and inspection regime services.590 The Commission staff met with to emergency accommodation,594 the protection applicants living in emergency Commission is of the view that this type accommodation in February 2019,591 in light of accommodation is incompatible with of concerns that people were being moved the rights of protection applicants. The at weekends so that the hotels could be used Commission recalls the reference to for commercial purposes. These applicants the Public Sector Equality and Human raised wide-ranging concerns regarding Rights Duty in the national standards for their treatment, including the failure to accommodation offered to people in the provide information about entitlements, protection process.595 Due consideration the failure to place children in school and must be given to the requirements of this preschool,592 isolation due to lack of access duty in the procurement and provision to transport, a lack of play spaces for of emergency accommodation, as well children, some adults sharing beds with as in the delivery of other services by strangers, insufficient sanitary and toiletry State bodies, including in the areas of items, unsuitable food for the cultural and health, education, and transport. religious beliefs of residents, delays in accessing medical cards and PPS numbers, Although this had been described as an ‘emergency’ measure, the Commission

588 Dáil Éireann (1 October 2019), Direct Provision System. 589 Dáil Éireann (8 October 2019), Direct Provision Data. 590 Joint Committee on Justice and Equality, ‘Direct 593 See also, section 10 on Health and social services. provision’. 594 Joint Oireachtas Committee on Justice and Equality 591 Commission staff visited emergency accommodation (19 June 2019), Direct Provision and the International facilities in a rural town in Monaghan in February 2019, Protection Application Process: Discussion (Resumed). including hotels and B&Bs. 595 Department of Justice and Equality, National Standards 592 See also, section 8 on Education. for Accommodation Centres.

IHREC CERD Submission | October 2019 114 is concerned that government officials • have stated that this system is now a long- term measure with some individuals living The Commission is of the view that in this type of accommodation for nine emergency accommodation does months.596 Recalling the Commission’s not adequately protect the rights of broader concerns about the normalisation of international protection applicants and emergency accommodation in the context that its use should cease as soon as of the housing crisis,597 it recommends possible. that emergency accommodation only be used for the shortest possible amount of time. The Commission is also of the • view that the current use of emergency accommodation does not meet the The Commission recommends minimum material reception conditions that where the use of emergency required by the European Communities accommodation is unavoidable, (Reception Conditions) Regulations 2018. international standards and the Public Sector Equality and Human • Rights Duty, must be considered in the request for tenders and that such The Commission is of the view that accommodation must only be used for the policy of direct provision does the shortest possible time. not adequately protect the rights of international protection applicants. In the long term, the Commission • recommends the complete phasing-out of direct provision.598 While the current model of direct provision remains in place, the Commission calls upon the State to develop a robust independent inspection mechanism to ensure that the new national standards for accommodation offered to people 596 Joint Oireachtas Committee on Justice and Equality in the protection process are fully (19 June 2019), Direct Provision and the International Protection Application Process: Discussion (Resumed). implemented, including in emergency 597 IHREC (2017), The Provision of Emergency accommodation centres. Accommodation to Families Experiencing Homelessness. 598 The Commission notes that the Department of Justice and Equality has established a high-level interdepartmental group, chaired at a senior level, to review the international protection system. To complement the work of this Special reception needs interdepartmental group, it has also established an advisory group to look at the longer-term approaches to Amongst other standards, the Reception providing supports to people in the protection process. This group will include experienced former public servants Conditions Directive (recast) obliges the and representatives from the NGO community, and will State to conduct assessments of the commence work in late October 2019. See Dáil Éireann (3 special reception needs of vulnerable October 2019), ‘International protection’.

115 IHREC CERD Submission | October 2019 persons.599 While the State indicated has several concerns about access to that plans were underway to institute disability services in Ireland, including the vulnerability assessment procedures in reduction in State funding for supports and advance of opting into the Directive,600 allowances, the culture surrounding the the Commission is concerned that, as of treatment of individuals with intellectual yet, a vulnerability assessment process disabilities, and the waiting lists in place.606 does not appear to have been created.601 Following consultation with women living in The Directive includes disabled people direct provision in 2016, the Commission within its definition of vulnerable persons reported that some women had been and requires States to take their specific subjected to harassment, which is often needs into account.602 The Reception and exacerbated by the fact that centres are Integration Agency does not maintain located in rural areas where women are easily statistics on the number of people with identified.607 Women report hostility and a disability residing in direct provision misogyny in their daily lives and often have but does try ‘to ensure that any special previous experiences of trauma, torture, accommodation arrangements are in abuse, and violence in their countries of place.’603 However, the Commission notes origin.608 There have been several reports of that people with disabilities can be moved women, children, and men in direct provision from their original placement due to the being offered money for sex by staff, other closure or planned closure of centres.604 residents, and people from the local area The Department of Justice and Equality who know that they are living in a situation has also confirmed that applicants for of poverty.609 The Commission has also international protection access disability been informed of concerns regarding the services through the same referral pathways inappropriate placement of LGBT asylum as Irish citizens.605 The Commission seekers in environments where they are subjected to harassment from others.610

599 See Article 22. The Commission notes that the new national 600 The Department of Justice and Equality held a civil standards for accommodation offered to society briefing on labour market access for international protection applicants in Dublin on 28 July 2018. Officials indicated that, in keeping with the Reception Conditions Directive (recast), a model would be adopted to cover disabilities’. health needs, including mental health, the needs of minors, 606 IHREC (April 2017), Comments on Ireland’s 14th National and other vulnerabilities. Officials indicated that a two- Report on the Implementation of the European Social Charter, step model was being prepared, which included an initial pp.22–23 and IHREC, Comments on Ireland’s 16th National assessment of the applicant in Balseskin Reception Centre Report on the Implementation of the European Social Charter, on arrival, followed by ‘ongoing assessment by dedicated pp.29–30. staff in direct provision centres.’ This briefing was given 607 IHREC, Ireland and the Convention on the Elimination of before emergency accommodation was being used to house all Forms of Discrimination against Women, p.115. protection applicants. 608 AkiDwA, Submission to the Joint Committee on Justice 601 Irish Refugee Council, The Reception Conditions & Equality, pp.2–3. Directive: One Year On, pp.18–19. 609 Joint Committee on Justice and Equality (29 May 602 See Article 21. 2019), Direct Provision and the International Protection 603 Dáil Éireann (27 March 2019), ‘Direct provision data’. Application Process: Discussion (Resumed) and AkiDwA, 604 For example, the closure of the Watergate House Submission to the Joint Committee on Justice & Equality, Accommodation Centre and the planned closure of the pp.2–3. Towers Accommodation Centre. 610 Discussion at the Commission’s Civil Society Forum in 605 Dáil Éireann (27 March 2019), ‘Services for people with May 2019.

IHREC CERD Submission | October 2019 116 people in the protection process require Impact of the policy of dispersal service providers to make a reception officer on the rights of asylum available in each centre. The main duties of seekers and refugees this officer are to receive information arising from vulnerability assessments, proactively Following the establishment of direct identify the special reception needs of provision in 2000, the Committee expressed residents on an ongoing basis, and liaise with concern in 2005 at ‘the possible implications the relevant services and authorities.611 of the policy of dispersal and direct provision for asylum-seekers’ and encouraged the • State to ‘take all necessary steps with a view to avoiding negative consequences for The Commission recommends individual asylum seekers.’613 Since then, the that all individuals receive an initial negative long-term impact of the State’s vulnerability assessment within a policy of direct provision on the rights of reasonable time after an application individuals seeking international protection in for international protection is Ireland has been well documented by national made and before their placement and international bodies.614 The Commission in a direct provision or emergency has highlighted the impact of direct provision accommodation centre. on the right to family and private life in particular,615 on the right to health,616 as well as its impact on the rights of specific • groups such as women617 and children.618

The Commission recommends that the The potential for the policy of dispersal to State continue to use the vulnerability result in racial segregation, as outlined by assessment process on an ongoing the Committee in 2005, has not received basis to proactively deliver appropriate services to applicants, including reasonable accommodation for 613 The Committee (14 April 2005), Concluding people with disabilities and supports Observations of the Committee on the Elimination of Racial sensitive to their gender and sexual Discrimination: Ireland, CERD/C/IRL/CO/2. orientation.612 The State should also 614 For example, Committee on the Rights of the Child, Concluding Observations on the Combined Third and Fourth report publicly on the operation of the Periodic Reports of Ireland, para. 66; Committee on Economic process and the actions taken. Social and Cultural Rights, Concluding Observations on the Third Periodic Report of Ireland, para. 14; Human Rights Committee, Concluding Observations on the Fourth Periodic Report of Ireland, para. 19; and The Committee (4 April 2011), Concluding Observations of the Committee on the Elimination of Racial Discrimination: Ireland, para. 20. The State has also committed to reforming the Direct Provision system during the second cycle of the Universal Periodic Review. See Human Rights Council (2016), Report of the Working Group on the Universal Periodic Review: Ireland, A/HRC/33/17/Add.1, 611 Department of Justice and Equality, National Standards para. 136. for Accommodation Centres, standards 10.3.2 and 10.4. 615 IHREC (2014), Policy Statement on Direct Provision. 612 See also section 14 for the Commission’s 616 See section 10 on health and social services. recommendation that victims of trafficking are 617 IHREC, Ireland and the Convention on the Elimination of accommodated in appropriate facilities that ensure access all Forms of Discrimination against Women. to the necessary support services. 618 IHREC (December 2015), Ireland and the Convention on

117 IHREC CERD Submission | October 2019 much attention. Article 3 of CERD requires that remains with residents even after they the State to prevent, prohibit, and eradicate have been granted some form of status.’621 all practices of racial segregation. General In a recent case study of an accommodation Recommendations 20 and 29 require these centre located 5km from the nearest town, practices to be prohibited in respect of residents reported that ‘being physically housing for non-citizens. In addition, General removed from the wider community…has Recommendation 19 acknowledges that a negative impact on residents’ wellbeing, ‘segregation may also arise as an unintended including their mental health.’622 by-product of the actions of private persons.’ The Commission has longstanding concerns that the system of dispersal is a major factor in the segregation and isolation of ʽ...the negative long-term international protection applicants and impact of the State’s policy may contribute to hostility in areas where centres are located.623 Furthermore, the of direct provision on the Commission is concerned about the very low rights of individuals seeking levels of consultation by the Department international protection of Justice and Equality with local residents. A government official has stated: ‘we have in Ireland has been well had many complaints about direct provision documented by national and centres being opened with people not international bodies. being informed and centres being landed into communities’ and acknowledged that communication must be improved.624 It has been stated that the rationale for the policy of dispersal was to ‘spread The Commission regrets that in 2018625 and the burden of education, medical, and 2019,626 two hotels, which were to be used to other services across the State.’619 The accommodate protection applicants, were remoteness of the location is not taken into consideration in the development of direct provision centres.620 However, The McMahon Report found that the location of 621 Working Group to Report to Government on Improvements to the Protection Process, including Direct centres, particularly in remote areas, ‘can Provision and Supports to Asylum Seekers, Final Report, act as a barrier to residents’ participation para. 4.108. in activities in the area and access to legal, 622 Doras Luimní (August 2019), Experiences of Living medical and other supports.’ The McMahon in Direct Provision: a case study of Mount Trenchard accommodation centre, p.19. Report also indicated that ‘the isolated 623 IHRC (2004), ‘Submission of the Irish Human Rights location of centres has a stigmatising effect Commission in respect of Ireland’s First National Report under the Convention on the Elimination of All Forms of Racial Discrimination’, p.61. 624 Joint Oireachtas Committee on Justice and Equality (19 June 2019), Direct Provision and the International the Rights of the Child. Protection Application Process: Discussion (Resumed). 619 Department of Justice and Equality (11 September 625 S. Maguire (25 November 2018), ‘Donegal hotel 2017), ‘Direct provision system’. earmarked for asylum seekers set on fire’, The Irish Times. 620 Joint Oireachtas Committee on Justice and Equality 626 S. Pollak (12 February 2019), ‘Rooskey fire was (19 June 2019), Direct Provision and the International premeditated and carefully planned, says Garda’, The Irish Protection Application Process: Discussion (Resumed). Times.

IHREC CERD Submission | October 2019 118 the rights of international protection ʽ applicants and that its impact in ...the system of dispersal practice amounts to a failure on the is a major factor in the part of the State to prevent racial segregation, contrary to Article 3 of segregation and isolation CERD. of international protection applicants and may contribute to hostility in areas where The provision of accommodation centres are located. by private non-State actors

subject to arson attacks. At a local meeting Currently, all 38 direct provision and protests in Galway in September accommodation centres are operated by 2019, concerns were also raised about private non-State actors,631 of which the the opening of a direct provision centre in State owns seven.632 In August 2019, the the community.627 The Commission notes Department of Justice and Equality published reports that groups of people queried a spending review of direct provision, which whether the government intends to carry outlines that €78 million was paid to private out background checks on asylum seekers, companies in 2018 and this is expected to and disseminated leaflets with misleading exceed €120 million in 2019.633 The report claims that asylum seekers are given priority details that approximately €22 million on housing lists.628 The tender to provide is to be spent on providing emergency this direct provision centre has since been accommodation in hotels and guesthouses withdrawn by the applicant.629 The Minister and a further €22.5 million is to be spent on for Justice and Equality has raised concerns contract renewals for existing commercial about these groups who are exploiting centres and the opening of new centres.634 the concerns of locals to ‘whip up anti- immigrant, anti-asylum seeker sentiment.’630 Following visits to several direct provision centres, the Commission has previously • expressed concern that given the involvement of private non-State actors, residents The Commission is of the view that the may have diverging experiences of direct policy of dispersal does not protect provision.635 This variation in service

627 B. Ní Fhlatharta (15 September 2019), ‘Locals 631 Department of Justice and Equality (8 October 2019), concerned about Oughterard asylum centre to protest around ‘Direct provision system’. the clock’, The Irish Times. 632 Department of Justice and Equality (2019), Spending 628 C. Gallagher and S. Pollak (23 September 2019), Review 2019, Direct Provision: Overview of Current ‘How the far-right is exploitation immigrations concerns in Accommodation Expenditure, p.iv. Oughterard’, The Irish Times. 633 Department of Justice and Equality, Spending Review 629 Department of Justice and Equality (1 October 2019), 2019, Direct Provision, p.iv. ‘Statement from the Department of Justice and Equality 634 Department of Justice and Equality, Spending Review regarding Oughterard’. 2019, Direct Provision, p.vi. 630 Minister C. Flanagan (23 September 2019), ‘Direct 635 IHREC, Ireland and the Convention on the Elimination of provision is not a threat to communities’, Irish Examiner. all Forms of Discrimination against Women, p.118.

119 IHREC CERD Submission | October 2019 640 be redeveloped into a five-star hotel. The ʽ closure of this centre has taken place despite ...it has been reported that capacity issues in the direct provision system, protection applicants have and more than half of the 200 residents will be accommodated in Balseskin Reception been moved out of emergency Centre.641 As stated above, it has also been accommodation at short reported that protection applicants have been notice to allow hotels to be moved out of emergency accommodation at short notice to allow hotels to be used used for other commercial for other commercial purposes.642 purposes. The for-profit nature of direct provision provision and residents’ experience of was described in The McMahon Report as ‘a the system is also noted in the report of striking aspect of the Irish arrangements the Ombudsman on complaints received for the reception of applicants’, particularly about the direct provision system.636 since it contrasts with other European countries.643 The Commission notes that The Commission has expressed concern that an interdepartmental committee has been human rights accountability mechanisms established to consider the State’s response can be weakened where the State delivers to people seeking international protection its public functions through non-State and that the group will consider alternative actors.637 For example, the State only models of service provision. The Department recognised the remit of the Ombudsman of Justice and Equality’s spending review and the Ombudsman for Children to receive makes some suggestions for consideration by complaints from people living in direct this group, such as moving to an allowance- provision in 2017.638 Furthermore, in the based system or contracting specialist current for-profit model, the Commission is not-for-profit accommodation providers. concerned that commercial interests take precedence over the rights of protection • applicants. In July 2019, the Hatch Hall direct provision centre in Dublin was closed due to The Commission recommends that the a ‘commercial decision by the operator’639 State move away from the current for- and it has been reported that the centre is to profit model of direct provision.

636 Ombudsman (January 2018), The Ombudsman and Direct Provision: The Story so Far, p.10. 640 C. Thomas (2019), ‘200 people to be moved as Dublin 637 IHREC, Ireland and the Convention on the Rights of the city direct provision centre closes down’, The Journal. Child, p.12. 641 Department of Justice and Equality (26 June 2019), 638 This followed a judicial review in which J. Mac Eochaidh ‘Direct provision system’. found that the existing complaints handling procedure and 642 Irish Refugee Council, The Reception Conditions some of the rules in place in the direct provision centres Directive: One Year On, p.11 and IHREC, Submission to the were unlawful. See C.A and T.A. (a minor) v Minister for Justice Universal Periodic Review of the UN Human Rights Council, and Equality, Minister for Social Protection, the Attorney p.11. General and Ireland (Record No. 2013/751/JR), para 3.1 and 643 Working Group to Report to Government on 6.1–12.6. Improvements to the Protection Process, including Direct 639 Department of Justice and Equality (26 June 2019), Provision and Supports to Asylum Seekers, Final Report, ‘Direct provision system’. p.153.

IHREC CERD Submission | October 2019 120 • Commissioner for Human Rights.649

Should the State continue to outsource The 2015 Act limits the statutory right the provision of reception conditions to family reunification to members of for international protection applicants, the nuclear family and removes the whether to for-profit or not-for-profit ‘dependent family members’ category non-State actors, all such outsourcing included in the (predecessor) Refugee Act should be subject to procurement 1996. There is also no statutory right for processes that are underpinned by aged-out unaccompanied and separated international human rights standards children, who applied for international and the Public Sector Equality and protection before turning 18, to apply Human Rights Duty. for family reunification with their parents on receiving status.650 The Commission has recommended that the 2015 Act be Family reunification amended to define family members in sufficiently broad terms to reflect the The Commission notes the Committee’s understanding of family as articulated Concluding Observation regarding a legal in international human rights law,651 and framework for family reunification,644 and the State’s confirmation645 that such a framework has been set out in the in Ireland. International Protection Act 2015, which 649 Council of Europe Commissioner for Human Rights came into effect on 31 December 2016. The (2017), Realising the Right to Family Reunification of Refugees Commission has serious concerns regarding in Europe. 650 Section 56(9)(c) of the International Protection Act 646 ‘retrogressive measures’ on family 2015 states that a child, who on the date of application is reunification introduced in the 2015 Act, and under the age of 18 years and is not married, is entitled to the impact of these changes on the rights apply for family reunification with his or her parents and their of beneficiaries of international protection children (who are also under the age of 18 years and not married). The Commission notes the finding of the Court of since the Act’s commencement. Similar Justice of the EU in April 2018 that an unaccompanied child concerns have been raised by various actors, who lodges an application for international protection before including a parliamentary Committee,647 the age of 18 but reaches the age of majority before being civil society,648 and the Council of Europe’s granted international protection, must be regarded as a minor in assessing entitlements for family reunification. See Case C-550/16, A and S v Staatssecretaris van Veiligheid en Justitie [2018] EU:C:2018:248. As Ireland has not opted into the EU Family Reunification Directive, this judgment is not 644 The Committee (4 April 2011), Concluding Observations binding. There have been successful legal representations of the Committee on the Elimination of Racial Discrimination: made in Ireland on behalf of aged-out unaccompanied and Ireland, para. 25. separated children seeking family reunification with their 645 Committee on the Elimination of Racial Discrimination parents and siblings, under the vulnerability provisions of the (5 November 2018), Combined Fifth to Ninth Periodic Reports 2015 Act and the A and S case. However, this right to family Submitted by Ireland under Article 9 of the Convention, para. reunification is not protected by law. See S. Groarke and S. 131. Arnold (December 2018), Approaches to Unaccompanied 646 IHREC (June 2018), The Right to Family Reunification for Minors Following Status Determination in Ireland (ESRI and Beneficiaries of International Protection. European Migration Network), pp.84–85. 647 Joint Oireachtas Committee on Justice and Equality 651 IHREC, The Right to Family Reunification for Beneficiaries (February 2017), Report on Immigration, Asylum and the of International Protection, pp.17–18. The European Court Refugee Crisis. of Human Rights has held that the right to family life 648 For example, Oxfam Ireland, Dear Family: How Migration extends beyond the nuclear family to relationships between Policies Are Keeping Families Apart – Refugee Family Reunion grandparents and grandchildren, uncle and aunts with nieces

121 IHREC CERD Submission | October 2019 to permit individuals in a customary family reunification applications to be made marriage or long-term partnership to within 12 months of the grant of refugee apply for family reunification.652 or subsidiary protection status. Meeting this time limit may prove impossible for many refugees due to difficulties in ʽ accessing legal support, tracing family The 2015 Act limits the members, collating documentation, and statutory right to family arranging for family members to liaise with 654 reunification to members embassies. The Commission has called for the repeal or amendment of this time of the nuclear family and limit, and provision for extension of time removes the ‘dependent limits where warranted. The Commission family members’ category is further concerned that the 2015 Act denies family reunification to refugees who included in the (predecessor) acquire citizenship by naturalisation. The Refugee Act 1996. Commission is of the view that naturalised refugees should not be excluded from the statutory family reunification regime.655 Limited access to tailored legal services and information has also been identified as • a challenge faced by applicants for family reunification, particularly unaccompanied The Commission recommends that and separated children seeking to navigate the State clarify how it intends to the process.653 The 2015 Act requires address the deficiencies in its statutory framework for family reunification.656

and nephews, and adult siblings. See L. v. The Netherlands (Application no. 45582/99), para. 36; Brauer v. Germany Kids in Need of Defense in the United States, are piloting (Application no. 3545/O4), para. 30; Marckx v Belgium a joint pro bono project to provide legal representation to (Application no. 6833/74), para. 45; Nsona v The Netherlands unaccompanied minors seeking family reunification. (Application no. 23366/94); and Boughenemi v France 654 Council of Europe Commissioner for Human Rights, (Application no. 16/1995/522/608). Realising the Right to Family Reunification of Refugees in 652 While it is possible for beneficiaries of international Europe, p.41. The diverse challenges faced when tracing protection to apply for reunification with family members family members have been outlined in a study published by who do not fit the 2015 Act definition of ‘member of family’ the Fundamental Rights Agency. See Fundamental Rights under the Policy Document on Non-EEA Family Reunification Agency (2016), Monthly Data Collection on the Current and, more recently, under the Irish Humanitarian Admissions Migration Situation in the EU – Thematic Focus: Family Tracing Programme, such applications fall outside the statutory and Family Reunification, September 2016 Monthly Report, framework and are subject to ministerial discretion. 1–31 August 2016, p.10. Refugees who meet the 2015 Act criteria are automatically 655 The Commission recently appeared as amicus curiae entitled to family reunification under that Act as of right; in Court of Appeal litigation seeking that the Refugee Act refugees who must apply under the non-EEA policy 1996, predecessor to the 2015 Act, be interpreted to apply document or IHAP scheme have no automatic entitlement to naturalised refugees. In its judgment of 29 March 2019, or right to family reunification. See Irish Naturalisation and the Court found that the declarations of refugee status of Immigration Service (December 2016), Policy Document on the two people at the centre of the cases had been revoked Non-EEA Family Reunification. by operation of law once they acquired Irish citizenship. See 653 See Groarke and Arnold, Approaches to Unaccompanied IHREC (2018), Amicus curiae Submission in Case of MAM v Minors Following Status Determination in Ireland, p.86. Minister for Justice. The Commission notes that the NGOs, the Irish Refugee 656 The Commission acted as a notice party in a recent Council, and the Immigrant Council of Ireland, together with case in which the applicant challenged the decision of

IHREC CERD Submission | October 2019 122 The Commission notes the Committee’s available and there have been concerns recommendation in 2011 that the State about delays in hearing immigration cases develop an ‘appellate procedure to challenge in the superior courts in the past.659 its decisions’ on family reunification.657 The requirement for an appellate procedure • in family reunification cases has also been identified by the European Committee The Commission recommends that of Social Rights.658 However, as was the an independent appeals procedure case under the Refugee Act 1996, refusals for family reunification applications of applications for family reunification be added to the existing appeals under section 56(8) of the International mechanisms of the State to protect the Protection Act 2015 may not be appealed. right to an effective remedy.

While individuals who are refused family reunification may not challenge the outcome Unaccompanied and of the decision, they may judicially review separated children the decision-making process. Since it is only possible to review the reasonableness of a decision through judicial review, this The lack of consistent and comprehensive course of action may not be considered data on unaccompanied and separated an effective remedy. Judicial review may children has been identified as a challenge also be a costly and time-consuming to the development of appropriate policy procedure, particularly since legal aid is not responses.660 The available information demonstrates that 175 unaccompanied children were referred to the Child and Family Agency in 2017, up from 97 in 2014. the Minister for Justice and Equality under section 56(9) Of these 175 children, 111 were taken (a) of the International Protection Act 2015 to refuse his into care. A family reunification service application for family reunification with his spouse on the 661 basis that the marriage was not subsisting at the time was also provided to 70 children. of the original application for international protection. The High Court found that the difference in treatment The Child and Family Agency has between applicants for international protection depending responsibility for making applications on the timing of their marriage did not have any objective or reasonable justification and was therefore arbitrary in for international protection on behalf of nature. The Court concluded that section 56(9)(a) of the unaccompanied and separated children,662 International Protection Act 2015 is unconstitutional and a violation of Article 14 together with Article 8 of the European Convention on Human Rights. See A v The Minister for Justice and Equality & Ors; S & anor v The Minister for Justice and 659 H. Becker (2014), ‘The law on family reunification’, Irish Equality & ors [2019] IEHC 547. Journal of European Law, 17(1). See also section 15 below and 657 The Committee (4 April 2011), Concluding Observations the discussion of the High Court Practice Direction 81. of the Committee on the Elimination of Racial Discrimination: 660 ESRI and Office for the Promotion of Migrant Ireland, para. 25. Integration (March 2019), Data for Monitoring Integration: 658 The Committee stated that ‘restrictions on the Gaps, Challenges and Opportunities, pp.29–30. exercise of the right to family reunion should be subject to an 661 Groarke and Arnold, Approaches to Unaccompanied effective mechanism of appeal or review, which provides an Minors Following Status Determination in Ireland, p.22. The opportunity for consideration of the individual merits of the report notes that there may be double counting of minors case consistent with the principles of proportionality and placed in care and minors who were provided with a family reasonableness.’ See European Committee of Social Rights reunification service and subsequently reunited with family. (January 2016), Conclusions 2015, para. 17. 662 ‘Where it appears on the basis of information,

123 IHREC CERD Submission | October 2019 but there are no standardised policies or The Equity of Care policy was introduced guidelines in place to inform the decision- by the Child and Family Agency in 2010, making process. Although the Commission requiring that the same standard of notes recent improvements in this area, care is provided to unaccompanied and the practice of such applications being separated children as to other children in delayed by social workers on a discretionary State care.668 This is aligned with the Public basis663 has been reported.664 Most Sector Equality and Human Rights Duty, unaccompanied and separated children do which requires public bodies to eliminate not receive a decision on their application discrimination in the performance of their for international protection before the functions.669 While the introduction of these age of 18,665 with potential impacts on obligations represents progress, they have their right to access family reunification, not been fully implemented in practice.670 employment, education, and other services and supports.666 As discussed further in Although unaccompanied and separated section 8, unaccompanied and separated children are assigned a social worker, they children have significant difficulties in are rarely appointed a guardian ad litem or accessing third-level education due to the another independent representative.671 high fees and their inability to meet the The Health Information and Quality eligibility requirements for the financial Authority has highlighted that aftercare supports available, including on the grounds planning for unaccompanied and separated of their residency and immigration status.667 children in residential settings can be inconsistent, resulting in preparation for their transition to adulthood and leaving care being compromised.672 Furthermore, including legal advice, available to it, that an application many children do not meet the eligibility for international protection should be made on [the child’s requirements for aftercare as they were only behalf]’. See section 15(4) of the International Protection referred to social work services between Act 2015. the ages of 16 and 17.673 Aged-out young 663 Reasons put forward for the delay include the view that it is not in the child’s best interests and that the child may not be deemed ready for the international protection process. The Child and Family Agency has a broad obligation to consider the best interests of the child in the performance 668 See Joint Committee on Health and Children (18 of its functions under section 9 of the Child and Family November 2010), ‘Implementation of child protection Agency 2013. However, there is no specific reference to the measures: discussion with HSE’. best interests principle, or the factors to be considered in 669 For further information on the Public Sector Equality the examination or determination of a child’s best interests and Human Rights Duty, see section 3. in making a decision under section 15(4) of the International 670 Ombudsman for Children’s Office (November 2016), Protection Act 2015 to make an application for international Submission to Tusla on the Review of the National Leaving and protection on behalf of unaccompanied and separated Aftercare Policy, p.8. children. 671 Groarke and Arnold, Approaches to Unaccompanied 664 Groarke and Arnold, Approaches to Unaccompanied Minors Following Status Determination in Ireland, p.52. Minors Following Status Determination in Ireland, p.36. Legislative reform of the Guardian ad litem arrangements is 665 Groarke and Arnold, Approaches to Unaccompanied currently being considered, with the aim of setting out the Minors Following Status Determination in Ireland, p.35. role, qualifications and appointment of such representatives 666 For research findings in this regard, see Groarke and at a statutory level. See Department of Children and Youth Arnold, Approaches to Unaccompanied Minors Following Affairs, Reform of Guardian Ad Litem Arrangements in Child Status Determination in Ireland. See also, Immigrant Council Care Proceedings. of Ireland, Child Migration Matters. 672 Groarke and Arnold, Approaches to Unaccompanied 667 For further information, see Immigrant Council of Minors Following Status Determination in Ireland, pp.55–57. Ireland, Child Migration Matters, pp.45, 261–271. 673 For aftercare purposes, eligible children are those who

IHREC CERD Submission | October 2019 124 people, who are awaiting an international • protection status determination on turning 18 and have been in care for less than a The Commission recommends that the year, are transferred from care to direct Equity of Care principle is consistently provision.674 It has been documented that applied in respect to aftercare planning moving from a care placement to direct and supports and that independent provision can be a very daunting experience representatives are appointed to for young people and that transfers to all unaccompanied and separated centres in rural areas can present particular children.676 barriers to accessing supports as aftercare workers are often based in Dublin.675

•

The Commission recommends that the State clarify its plans to improve data collection and analysis on unaccompanied and separated children to develop appropriate policy responses.

•

The Commission recommends the publication of guidance to support the submission of international protection applications for unaccompanied and separated children by the Child and Family Agency.

have been in the care of the State for at least 12 months between the ages of 13 and 18. For further information, see Groarke and Arnold, Approaches to Unaccompanied Minors Following Status Determination in Ireland, pp.53–54. 674 The Commission previously highlighted this issue to the Committee on the Rights of the Child in 2016. See IHREC (December 2015), Report by the Irish Human Rights and Equality Commission to the UN Committee on the Rights of the Child on Ireland’s Combined Third and Fourth Periodic Reports, p.38. 675 Groarke and Arnold, Approaches to Unaccompanied 676 As recommended by the Committee in 2011. See The Minors Following Status Determination in Ireland, pp.55–57 Committee (4 April 2011), Concluding Observations of the and Ombudsman for Children’s Office, Submission to Tusla Committee on the Elimination of Racial Discrimination: Ireland, on the Review of the National Leaving and Aftercare Policy, p.8. p.5.

125 IHREC CERD Submission | October 2019 Section 14 Human Trafficking (Articles 2, 5(b)) It has been identified that met and are not being afforded Ireland is both a destination sufficient priority. As a result, and source country for the US Department of State trafficking, including classified Ireland as Tier 2 people trafficked for sexual status in its 2018 and 2019 exploitation, domestic Trafficking in Persons reports.680 work, fishing,677 agriculture,

the restaurant industry, Investigations and waste management, and prosecutions car-washing services.678 The State has been criticised as maintaining The Commission notes ‘insufficient law enforcement efforts’ concerning human trafficking.681 The focus that Ireland ratified the of the legislative approach is on criminalising International Labour offences of trafficking and providing for dissuasive penalties.682 However, although Organisation Forced Labour there were 64 reported investigations Protocol, 2014 on 4 February relating to trafficking in 2018, the authorities 679 did not initiate any prosecutions (only 2019. However, despite three were initiated in 2017). Overall, there some effort on the part of have been no convictions for trafficking for sexual or labour exploitation since State authorities to combat the relevant legislative framework was trafficking and support victims, introduced in 2013.683 GRETA has raised concern that the absence of appropriate minimum standards across convictions and sentences creates several areas are still not being a sense of impunity and undermines efforts to support victims to testify.684

677 See the Commission’s submission to the Committee 680 US Department of State, Trafficking in Persons Report, on the List of Themes for information on the fishing industry p.235 and US Department of State, Trafficking in Persons and the Atypical Working Scheme for Seafarers. IHREC (July Report, p.251. 2019), Submission to the UN Committee on the Elimination of 681 US Department of State, Trafficking in Persons Report, Racial Discrimination on the List of Themes for the Examination p.251. of Ireland on its Combined 5th to 9th Report, p.22. 682 See sections 1 to 4 of the Criminal Law (Human 678 US Department of State (June 2019), Trafficking Trafficking) Act 2008, as amended by the Criminal Law in Persons Report, p.253 and GRETA (July 2017), Report (Human Trafficking) (Amendment) Act 2013. Concerning the Implementation of the Council of Europe 683 US Department of State, Trafficking in Persons Report, Convention on Action against Trafficking in Human Beings by p.251. Ireland: Second Evaluation Round, p.8. 684 GRETA, Report Concerning the Implementation of the 679 Merrion Street (28 January 2019), ‘Ireland agrees to Council of Europe Convention on Action against Trafficking in ratify the ILO Forced Labour Protocol’. Human Beings by Ireland, p.55.

127 IHREC CERD Submission | October 2019 The Commission is also concerned about the limited application of the administrative the impact of Brexit on the ability of the arrangements in place, the failure to authorities across the island of Ireland formally set out the nature and detail of the to effectively address transnational identification process, and the lack of clarity crimes, such as human trafficking, and transparency in decision-making.686 including due to disruptions to extradition arrangements, policing cooperation, and information- and data-sharing.685 ʽ...the State continues to • rely on an inadequate The Commission recommends that administrative scheme for the the State should address the existing recognition and protection of obstacles preventing the prosecution of perpetrators of trafficking. victims of trafficking.

However, despite the above judgment, the • State continues to rely on an inadequate administrative scheme for the recognition The Commission recommends that any and protection of victims of trafficking. In future arrangement with the United 2017, State authorities participated in a UN Kingdom following its departure from Office of Drugs and Crime research project the European Union should aim to be as that aimed to understand the variance in comprehensive as possible and cover numbers between victims who are known to police co-operation, as well as any the relevant authorities and victims who are data-sharing arrangements, including not. The study found that the total number in the area of human trafficking. of victims could be twice the number of identified victims.687 Furthermore, in June 2019, the US Department of State raised its Victim identification concerns about the ‘chronic deficiencies’ in and assistance the victim identification process in Ireland.688 In particular,689 the formal procedures for The Commission appeared as amicus curiae in the case of P. v The Chief Superintendent of the Garda National Immigration Bureau & 686 IHREC (15 April 2019), ‘IHREC calls for immediate Ors in 2015, wherein the High Court found action to protect victims of human trafficking following High that the State’s administrative scheme Court judgment’. See also, GRETA, Report Concerning the for the protection of victims is inadequate Implementation of the Council of Europe Convention on Action under EU law aimed at combatting human against Trafficking in Human Beings by Ireland, para. 111–113. 687 UNODC (2018), Monitoring Target 16.2 of the United trafficking. In particular, the Court criticised Nations Sustainable Development Goals: Multiple Systems Estimation of the Numbers of Presumed Victims of Trafficking in Persons – Ireland, p.4. 688 US Department of State, Trafficking in Persons Report, 685 A. Kramer, R. Dickson, and A. Pues (August 2019), p.251. Evolving Justice Arrangements Post-Brexit (IHREC and the 689 For more detail on the gaps in the victim identification Northern Ireland Human Rights Commission). process in Ireland, see GRETA, Report Concerning the

IHREC CERD Submission | October 2019 128 victim identification do not apply to EEA GRETA in October 2018 that ‘the review nationals or asylum seekers, requiring the is not complete.’694 The Commission latter to choose between identification is concerned that the fundamental as a victim of trafficking and their pending review of the victim identification application for international protection.690 process does not seem to be subject to The Commission is also concerned about concrete timelines or clear outcomes. the role of An Garda Síochána in assessing the formal identification of victims at The State has confirmed that guidance the same time as investigating criminal for police and prosecutors has been put offences, which can result in a conflict of in place that ‘provides for the separation priorities. GRETA has called on the State of the criminal investigation and the to promote multi-agency involvement trafficking identification procedure.’695 in the victim identification process to The Commission welcomes such guidance guarantee that, in practice, identification is but remains concerned that the non- disassociated from the suspected victim’s punishment of victims of trafficking cooperation in the investigation.691 has yet to be codified in Irish law.696

The Commission notes the State’s adoption • of the Second National Action Plan to Prevent and Combat Human Trafficking in Ireland in The Commission recommends that the 2016, and the government’s commitment victim identification process be placed to ‘carry out a fundamental review’ of the on a statutory footing, which should formal identification process for victims include a clear statement regarding of trafficking to ensure that it meets the rights and entitlements that flow international best practice.692 However, the from a positive decision regardless of State’s activities concerning this review the victim’s nationality or immigration have been limited to engagement with the status. Fair procedures must be police, State bodies, and civil society, and afforded to the potential victim reviewing the administrative documents throughout the process.697 that guide identification procedures.693 The Commission further notes the State’s indication in its follow-up report to 694 Committee of the Parties to the Council of Europe Convention on Action against Trafficking in Human Beings (2018), Report Submitted by the Irish Authorities on Measures Taken to Comply with Committee of the Parties Implementation of the Council of Europe Convention on Action Recommendation CP(2017)29 on the Implementation of the against Trafficking in Human Beings by Ireland, para. 106–116. Council of Europe Convention on Action Against Trafficking in 690 US Department of State, Trafficking in Persons Report, Human Beings, Second Evaluation Round, p.3. p.252 and GRETA, Report Concerning the Implementation of 695 Committee of the Parties to the Council of Europe the Council of Europe Convention on Action against Trafficking Convention on Action against Trafficking in Human Beings, in Human Beings by Ireland, para. 116. Report Submitted by the Irish Authorities on Measures Taken 691 GRETA, Report Concerning the Implementation of the to Comply with Committee of the Parties Recommendation Council of Europe Convention on Action against Trafficking in CP(2017)29 on the Implementation of the Council of Europe Human Beings by Ireland, para. 106. Convention on Action against Trafficking in Human Beings, p.9. 692 Department of Justice and Equality (2016), Second 696 This was recommended by GRETA in 2017. See GRETA, National Action Plan to Prevent and Combat Human Trafficking Report Concerning the Implementation of the Council of in Ireland, p.47. Europe Convention on Action against Trafficking in Human 693 Anti-Human Trafficking Unit, Department of Justice Beings by Ireland, pp.50–51. and Equality (2018), Annual Report 2017, p.14. 697 The Commission previously made this submission

129 IHREC CERD Submission | October 2019 • process and the provision of assistance, as a formal victim statement and referral The Commission recommends that the from law enforcement are required for State provide further information on its potential victims to access services through review of the formal victim identification the national referral mechanism.701 The process, particularly the timelines for Commission is also aware of concerns when the new identification process will about the limited availability of supports be in place, and what measures are to be for women who have been trafficked and, applied in the interim.698 in particular, services that protect women from the risk of deportation and address their physical and mental health.702 • In 2017, the State provided €360,000 to The Commission recommends that the non-governmental organisations to support State put the non-punishment principle victims of trafficking, with a particular on a statutory footing to ensure that focus on ‘exit supports’.703 As well as the victims are not prosecuted for crimes delivery of immediate and short-term that they were compelled to carry out as assistance, the State is required to adopt a result of being trafficked. more long-term social inclusion measures focused on the physical and psychological wellbeing of victims of trafficking, their The Commission notes that there is an protection from being re-trafficked, absence of a clear statutory basis in Ireland and their participation in the economic, for the right of victims to specialised services social, cultural, and political life of society. and assistance.699 However, the Department Such supports should include access to of Justice and Equality has indicated that counselling, financial assistance, housing, there are currently no plans to introduce training and education, and childcare.704 primary legislation to address this gap.700

Furthermore, GRETA has criticised the ongoing links between the criminal justice

701 Note, victims unwilling to engage with law enforcement can access services through NGOs but not through the to GRETA in 2016. See IHREC (5 September 2016), IHREC formal referral mechanism. See US Department of State, Submission to GRETA in Advance of its Second Evaluation Round Trafficking in Persons Report, p.252. of Ireland, p.29. 702 US Department of State, Trafficking in Persons Report, 698 IHREC (2016), IHREC Submission to GRETA in Advance of p.252. These issues were also raised at the Commission’s its Second Evaluation Round of Ireland, p.29. Civil Society Forum on 27 May 2019. 699 This right derives from Article 12 of the Council of Europe 703 Department of Justice and Equality (2018), Trafficking Convention on Action against Trafficking in Human Beings and in Human Beings in Ireland: Annual Report 2017, p.21. The Recital 18 and 22 and Article 11 of the Directive 2011/36/EU Anti-Human Trafficking Unit provided an additional €66,441 of the European Parliament and of the Council of 5 April 2011 to these NGOs to provide supports to migrant workers and on Preventing and Combating Trafficking in Human Beings victims of sex trafficking, but it is not clear if these initiatives and Protecting its Victims, and Replacing Council Framework were targeted at providing exit strategies. Decision 2002/629/JHA. 704 Human Rights Council (23 April 2019), Report of the 700 The Commission highlighted this in a letter sent to Special Rapporteur on Trafficking in Persons, especially Women GRETA on 1 November 2018, as part of its one-year follow-up and Children, A/HRC/41/46, para. 4–9. See also, Ruhama procedure. (2018), Annual Report 2017, pp.21, 33.

IHREC CERD Submission | October 2019 130 • The absence of convictions for trafficking in Ireland precludes victims from accessing The Commission recommends that the compensation through the courts.709 State adopt legislation to ensure that Furthermore, in the majority of cases, victims all potential victims of trafficking have of trafficking for sexual exploitation do not a statutory right to specialised services have verifiable expenses or employment and assistance, irrespective of their losses to present to an employment or involvement with law enforcement compensation tribunal.710 Victims also agencies.705 cannot claim for the pain and suffering experienced as a result of trafficking before the Criminal Injuries Compensation • Tribunal.711 GRETA has noted the absence of a dedicated compensation fund for The Commission recommends that victims of trafficking which could use the the State assess whether its current assets confiscated from perpetrators.712 provision of funding is sufficient to ensure the availability of long-term • social inclusion measures and supports for victims of trafficking. The Commission recommends that the State take measures to ensure that victims of trafficking can access Access to compensation compensation, including through provision of the necessary information Victims of trafficking can obtain compensation and supports. through a court order, civil action, the Criminal Injuries Compensation Tribunal, and State bodies dealing specifically with work-related • rights, including the WRC.706 However, several administrative and other barriers The Commission recommends that exist in practice, preventing victims from the State examine the possibility of accessing justice and an effective remedy for the violation of their rights. No victim had received compensation through any of these avenues by 2018.707 In 2019, it was reported 709 Group of Experts on Action against Trafficking in that the WRC awarded lost wages to six Human Beings (20 September 2017), Report Concerning victims of trafficking in the fishing industry.708 the Implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Ireland: Second Evaluation Round, paras 174–175. 710 US Department of State, Trafficking in Persons Report, p.252 and Group of Experts on Action against Trafficking in 705 The Commission previously made this recommendation Human Beings, Report Concerning the Implementation of the to GRETA in 2016. See IHREC, IHREC Submission to GRETA in Council of Europe Convention on Action against Trafficking in advance of its Second Evaluation Round of Ireland, p.29. Human Beings by Ireland, para. 179. 706 US Department of State, Trafficking in Persons Report, 711 IHREC, IHREC Submission to GRETA in advance of its p.252. Second Evaluation Round of Ireland, pp.34–35. 707 US Department of State, Trafficking in Persons Report, 712 Group of Experts on Action against Trafficking in p.236. Human Beings, Report Concerning the Implementation of the 708 US Department of State, Trafficking in Persons Report, Council of Europe Convention on Action against Trafficking in p.252. Human Beings by Ireland, para. 180.

131 IHREC CERD Submission | October 2019 establishing a dedicated compensation analysis of data on victims of trafficking fund for victims of trafficking, including across Ireland,716 and notes that the issue of a contribution from any proceeds trafficking children has been identified as an confiscated from perpetrators of issue that requires additional research.717 trafficking.713 •

Data collection and The Commission recommends that the monitoring State provide information on its plans to support sustained and improved data collection and reporting to ensure In 2017, GRETA called on the authorities to a comprehensive picture of the human continue developing the data collection and trafficking situation in Ireland.718 monitoring systems in place to ensure that there is a comprehensive picture of the human trafficking situation in Ireland.714 In line with • these recommendations, the Second National Action Plan to Prevent and Combat Human The Commission is of the view that Trafficking in Ireland sets out the State’s an independent, dedicated national commitment to considering the possibility rapporteur should be appointed in line of putting in place an independent National with international best practice to Rapporteur on Human Trafficking.715 Through monitor developments on trafficking formal engagement with the Department and to support the State’s compliance of Justice and Equality, the Commission with human rights standards.719 is considering whether it could fulfil this role of National Rapporteur in Ireland.

The Commission welcomes the ongoing Human Trafficking and Exploitation Project, which is focused on the collection and

716 A. Jacques (13 June 2018), ‘Limerick to lead human trafficking and exploitation project’, Limerick Post. This all- island project is focused on examining the official and non- 713 Note, the Commission raised this issue with GRETA official data on human trafficking in Ireland. in 2016. See IHREC, IHREC Submission to GRETA in advance 717 GRETA, Report Concerning the Implementation of the of its Second Evaluation Round of Ireland, pp.35–36. It is Council of Europe Convention on Action against Trafficking in important to note that the State has previously said that Human Beings by Ireland, p.15. ‘the establishment of a dedicated compensation fund for 718 This recommendation was also made by GRETA in victims of human trafficking would be inappropriate given 2017. See Committee of the Parties to the Council of Europe that no such fund exists for any other victims of crime.’ Convention on Action against Trafficking in Human Beings, See Department for Justice, Equality, and Defence (2009), Report Submitted by the Irish Authorities on Measures Taken Review of the National Action Plan to Prevent and Combat to Comply with Committee of the Parties Recommendation Trafficking in Human Beings 2009–2012, p.57. CP(2017)29 on the Implementation of the Council of Europe 714 GRETA, Report Concerning the Implementation of the Convention on Action against Trafficking in Human Beings, Council of Europe Convention on Action against Trafficking in p.46. Human Beings by Ireland, pp.11–12, 14. 719 The Commission previously expressed this view to 715 Department of Justice and Equality, Second National the European Committee of Social Rights in 2019. See Action Plan to Prevent and Combat Human Trafficking in IHREC, Comments on Ireland’s 16th National Report on the Ireland, p.82. Implementation of the European Social Charter, p.8.

IHREC CERD Submission | October 2019 132 Accommodation of 13 of this submission, there are also victims of trafficking in reports of people in direct provision being offered money for sex by staff and people direct provision centres in the local area. Although one female gender hostel has been established, the The Commission is concerned about the Commission notes reports that it is removed absence of dedicated accommodation from any specialised complementary arrangements for victims of trafficking. services for trafficked women.723 In violation of the Council of Europe Convention on Action against Trafficking in • Human Beings,720 victims continue to be inappropriately accommodated in mixed- The Commission recommends gender housing within the direct provision that victims of trafficking are system and may have to remain there for accommodated in appropriate facilities several years until a determination is made that ensure access to the necessary on their claim for international protection. support services.724 These centres lack sufficient specialised services and privacy, with the requirement to share a bedroom with other people being described as particularly challenging. ʽ Overall, the use of such accommodation victims continue to can expose victims to further exploitation, be inappropriately trauma, and mental health issues, thereby accommodated in mixed- undermining their recovery and increasing their risk of being re-trafficked.721 gender housing within the Female victims of trafficking have direct provision system and reported sexual advances, harassment, may have to remain there and inappropriate behaviour by other residents.722 As highlighted in section for several years until a determination is made on their claim for international 720 Article 12 places an obligation on Ireland to adopt legislative and other measures as may be necessary to assist protection. victims in their recovery, including by ensuring appropriate and secure accommodation and psychological and material assistance. 721 US Department of State, Trafficking in Persons Report, p.252, Immigrant Council of Ireland (22 May 2019), ‘Immigrant Council of Ireland opening statement to the Oireachtas Joint Committee on Justice and Equality on issues of direct provision and the international protection application 723 Immigrant Council of Ireland, ‘Immigrant Council of process’ and IHREC, IHREC Submission to GRETA in advance of Ireland opening statement to the Oireachtas Joint Committee its Second Evaluation Round of Ireland, pp.38–40. on Justice and Equality on issues of direct provision and the 722 GRETA, Report Concerning the Implementation of the international protection application process’. Council of Europe Convention on Action against Trafficking in 724 The Commission previously made this Human Beings by Ireland, para. 130 and Joint Committee on recommendation to GRETA in 2016. See IHREC, IHREC Justice and Equality (22 May 2019), ‘Direct provision and the Submission to GRETA in advance of its Second Evaluation international protection application process: discussion’. Round of Ireland, pp.38–40.

133 IHREC CERD Submission | October 2019 Section 15 Access to Justice (Articles 2, 5(a), 7) Policing reform all of the recommendations in full.729 A four-year implementation plan, A Policing The government established the Service for the Future, was published in Commission on the Future of Policing in December 2018 and a programme office Ireland in May 2017 to review the role, has been established in the Department structures, leadership, management, ethos, of An Taoiseach to oversee and report on and culture of policing.725 As part of this progress.730 To date, a human rights unit process and in line with the Concluding has been created within An Garda Síochána, Observations of the Committee in 2011,726 and the Strategic Human Rights Advisory the Commission called for human rights and Committee has been re-established.731 equality standards to be embedded in every aspect of policing, including the delivery of However, despite this reform, the services and the operation of the oversight Commission remains concerned about and accountability mechanisms in place.727 the extent to which the criminal justice system in Ireland has the capacity to be responsive and sensitive to the needs of minority ethnic communities. ʽThe report of the Commission on the Future of Policing was published in September The experiences of minority 2018 and recognises, as a ethnic groups within the first principle, that ‘human criminal justice system

rights are the foundation and Reports indicate that minority ethnic purpose of policing.’ communities can be under-protected and over-policed, including due to racial profiling.732 The report of the Commission on the Future The Commission notes the findings of the of Policing was published in September 2018 and recognises, as a first principle, that ‘human rights are the foundation and purpose of policing.’728 The Commission 729 IHREC (18 September 2018), ‘Primacy of human rights in welcomes the comprehensive approach the future of policing in Ireland welcomed by Human Rights and to human rights set out in the report and Equality Commission’. the acceptance by the government of 730 Government of Ireland (December 2018), A Policing Service for the Future: Implementing the Report of the Commission on the Future of Policing in Ireland and Department of Justice and Equality (27 February 2019), ‘Written answers – juvenile offenders’. 725 Department of Justice and Equality (16 May 2017), 731 Joint Committee on Justice and Equality (26 June ‘Tánaiste announces membership and final terms of reference 2019), ‘Garda reform and related issues: discussion’. of Commission on the future of policing in Ireland’. 732 The Committee (2011), Concluding Observations of the 726 The Committee (2011), Concluding observations of the Committee on the Elimination of Racial Discrimination: Ireland, Committee on the Elimination of Racial Discrimination: Ireland, CERD/C/IRL/CO/3-4, para. 18. See also, L. Michael and S. CERD/C/IRL/CO/3-4, para. 18, 24. O’Curry (2018), ENAR Ireland Submission to the Commission 727 IHREC, Submission to the Commission on the Future of on the Future of Policing in Ireland, p.3 and L. Kushnick (1999) Policing. ‘“Over policed and under protected”: Stephen Lawrence, 728 The Commission on the Future of Policing in Ireland, institutional and police practices’, Sociological Research The Future of Policing in Ireland, p.ix. Online, 4(1), pp.1–11.

136 IHREC CERD Submission | October 2019 2014 Special Inquiry733 on the removal of groups to combat prejudice and create a two Roma children from their families on the relationship of trust.739 The new Diversity basis that the children’s appearance did not and Integration Strategy 2019–2021 of An conform to racial stereotypes and did not Garda Síochána includes a commitment physically resemble their respective parents.734 to foster minority communities’ trust to It concluded that, in the case of one of the enhance access to policing services.740 Roma children affected, his ‘ethnicity was so influential in determining the decision Some participants at the Be Heard on CERD to remove him from the care of his parents, consultation spoke about the positive with no objective or reasonable justification’ experiences they had with members of that it amounted to ethnic profiling.735 An Garda Síochána who were involved in community youth organisations.741 However, The special inquiry led to the National concerns were also raised about the targeting Roma Needs Assessment,736 which found of people from minority ethnic groups, that 53% of Roma respondents reported including with regard to stop and search feeling discriminated against by An Garda powers.742 Overall, the young people expressed Síochána or in the courts.737 A further 78% their mistrust in the justice system and their of respondents reported that they had been reluctance to report discrimination and other stopped at least once by An Garda Síochána offences. While the Commission supports for identification, and of those, 56% reported the appointment of Garda ethnic liaison being stopped four times or more.738 officers to work with minority communities, it notes that discrimination does not explicitly The Commission notes the Committee’s constitute a breach of discipline within the position that the State should foster Garda Síochána (Discipline) Regulations 2007. dialogue and cooperation between the police and representatives of minority ethnic As well as having higher rates of engagement with An Garda Síochána, minority ethnic groups are overrepresented in the prison 733 This special inquiry was conducted by Emily Logan, system. Travellers comprise 10% of the who was the Ombudsman for Children at the time but was male prison population and 22% of the acting in an independent capacity for the purposes of the female prison population, despite making inquiry. 734 See also section 10. 735 Department of Justice and Equality (2014), Report of Ms. Emily Logan, p.115. 736 The special inquiry recommended that an assessment 739 The Committee (2005), General Recommendation XXXI of need be undertaken by a nominated government on the Prevention of Racial Discrimination in the Administration department to establish how best to improve State and Functioning of the Criminal Justice System, p.4. agencies’ interaction with, and provision of support to, the 740 An Garda Síochána, Diversity and Integration Strategy Roma community. Subsequently, the National Roma Needs 2019–2021, p.7. Assessment, commissioned by the Department of Justice 741 Attendees mentioned in particular the positive impact and Equality in line with the Logan Report, was published in of the Garda National Youth Awards. See An Garda Síochána 2018. See Department of Justice and Equality, Report of Ms. (2019), ‘First ever Garda National Youth Awards to recognise Emily Logan, p.106 (recommendation 4.2.3). over 100 young people’. 737 Pavee Point Traveller and Roma Centre and 742 These views echo previous findings of institutional Department of Justice and Equality, Roma in Ireland – A discrimination against minority communities in some of the National Needs Assessment, p.53. operations of An Garda Síochána. See Ionann Management 738 Pavee Point Traveller and Roma Centre and Consultants (2004), An Garda Síochána Human Rights Audit, Department of Justice and Equality, Roma in Ireland – A pp.76, 93–95 and D. Walsh (2009), Human Rights and Policing National Needs Assessment, p.53. in Ireland (Dublin: Clarus Press), p.592.

IHREC CERD Submission | October 2019 137 up only 0.6% of the general population.743 A report from the Oberstown Children ʽ Detention Campus demonstrates that at ...there is an absence of the beginning of 2019, 19% of children in adequate protections to detention were members of the Traveller ensure that minority ethnic community.744 District Court judges are not required to provide written reasons for groups are not increasingly imposing a particular sentence, resulting in a targeted through racial lack of data to support measures to address profiling. this overrepresentation. The Commission notes that the Judicial Council Act 2019 ensure that minority ethnic groups are not provides for a Sentencing Guidelines and increasingly targeted through racial profiling.748 Information Committee to collate information on sentences imposed by the courts.745 •

The Commission would also like to bring to the The Commission recommends Committee’s attention concerns about the that racial profiling is dealt with operation of selective passport and identity appropriately, including through checks by An Garda Síochána on cross-border legislative measures.749 buses between Ireland and Northern Ireland, which are frequently conducted based on racial profiling.746 The UK government has • established that, following its departure from the EU, the future immigration system The Commission recommends that, will not include a routine border control, but through the Sentencing Guidelines and in-country checks to control access to the Information Committee or another labour market and public services.747 The mechanism, the Courts Service Commission is concerned that this does not collects data on sentencing that is seem to reflect current practice and there disaggregated on the grounds of is an absence of adequate protections to ethnicity.

• 743 K. Holland (20 October 2017), ‘Disproportionate number of Travellers in prison population’, The Irish Times. The Commission recommends the 744 Oberstown Children Detention Campus (2019), Key discontinuation of passport and Characteristics of Young People in Detention: A Snapshot (Q1, 2019), p.6. At the beginning of 2018, 22% of children identity checks by An Garda Síochána in detention were members of the Traveller community. and other Irish officials at the border See, Oberstown Children Detention Campus (2018), Key Characteristics of Young People in Detention: A Snapshot (Q1, 2018). 745 See section 23. 748 See Harvey et al. (2018), Brexit, Border Controls and 746 See Irish Council for Civil Liberties (17 September Free Movement. 2019), ‘Equality complaint made against Translink for 749 In 2011, the Committee recommended that the facilitating discriminatory passport checks on cross-border State party adopt legislation that prohibits any form of buses’. racial profiling. See The Committee (2011), Concluding 747 HM Government (December 2018), The UK’s Future Observations of the Committee on the Elimination of Racial Skills-Based Immigration System, p.91. Discrimination: Ireland, para. 18.

138 IHREC CERD Submission | October 2019 between Ireland and Northern Ireland While these measures are welcome, they are based on racial profiling.750 largely short-term in nature, only available for specific groups of professionals (for example, ethnic liaison officers), and involve training Cultural competency provided during pre-service education rather than as part of a structured and ongoing The reported experiences of minority ethnic process of professional development. groups in engaging with criminal justice The report does not set out the extent to agencies raises questions about the level which such training measures have been of cultural competence within the system. periodically evaluated to determine their ECRI has noted different accounts of police contribution to a culture of knowledge and attitudes to minorities in Ireland, ranging respect for the rights of minority ethnic from ‘indifferent’ to ‘toxic’.751 In recent communities.755 Furthermore, there is years, several international human rights no reference to the human rights and treaty monitoring bodies have identified intercultural awareness training provided shortcomings in law enforcement training to other criminal justice agencies, for in Ireland, including with regard to gender- example, the Office of the Director of Public based violence affecting Traveller, Roma, and Prosecutions. The Diversity and Integration migrant women and girls.752 The 2018 report Strategy 2019–2021, published in October of the Commission on the Future of Policing 2019, includes a commitment to address also highlighted the continuing shortcomings potential discriminatory attitudes within in the professional development and An Garda Síochána, including through the training practices in An Garda Síochána.753 delivery of a training programme to build the competency and capacity of members The Commission notes that the State report and staff to interact more positively provides information on the human rights with minority ethnic communities.756 and intercultural awareness training provided to members of An Garda Síochána, the The Commission is also concerned about Prison Service, and the Defence Forces.754 the recent remark by a High Court judge that an asylum seeker making a family reunification application is ‘tucking’ into a ‘goody-bag labelled rights.’757 The 750 IHREC and the Northern Ireland Human Rights Commission recently funded research which has called for Judicial Council Act 2019 provides for an independently appointed panel of human rights experts the establishment of a Judicial Studies to be tasked with completing ex ante assessments of any Committee to facilitate the continuing future justice and security arrangements agreed with the UK. See Kramer et al., Evolving Justice Arrangements Post- Brexit, p.97. 751 ECRI, Report on Ireland (Fifth Monitoring Cycle), p.20. 752 CEDAW, Concluding Observations on the Combined 755 The Committee on the Rights of the Child has Sixth and Seventh Periodic Reports of Ireland, p.7 and recommended the periodic evaluation of training Committee against Torture (31 August 2017), Concluding programmes to determine their effectiveness. See Observations on the Second Periodic Report of Ireland, CAT/C/ Committee on the Rights of the Child (2003), General IRL/CO/2, p.5. See also, section 12. Comment No. 5: General Measures of Implementation of the 753 The Commission on the Future of Policing in Ireland, Convention on the Rights of the Child, CRC/GC/2003/5, p.13. The Future of Policing in Ireland, p.12. 756 An Garda Síochána, Diversity and Integration Strategy 754 The Committee, Combined Fifth to Ninth Periodic 2019–2021, p.9. Reports Submitted by Ireland under Article 9 of the 757 R.C. (Afghanistan) v The Minister and Equality, Ireland Convention, pp.12–13, 38–39. and the Attorney General [2019] IEHC 65, para. 28.

IHREC CERD Submission | October 2019 139 education of judges.758 The Commission community.759 The Commission is also of is of the view that this mechanism is an the view that in order to enhance trust opportunity through which the specialisation within minority ethnic communities, it is of the judiciary on human rights, equality, and imperative that the criminal justice system cultural competence may be supported. fully reflects the diversity of Irish society.

• ʽ The Commission recommends that in order to enhance trust human rights and equality standards within minority ethnic are central to the initial and continuous training of all criminal justice communities, it is imperative personnel, including staff within An that the criminal justice Garda Síochána, the Office of the system fully reflects the Director of Public Prosecutions, the Prison Service, and detention centres. diversity of Irish society.

There have been several important • developments in the area of policing in recent years. The report of the Commission The Commission recommends that the on the Future of Policing recognises that a Judicial Studies Committee support more diverse workforce will lead to improved the continuing education of the policing outcomes and the subsequent An judiciary on human rights, equality, and Garda Síochána People Strategy 2019–2021 cultural competence. includes commitments relating to diversity and the building of an inclusive culture.760 Furthermore, An Garda Síochána ran a Diversity within the recruitment campaign in 2019 focused criminal justice system on encouraging candidates from diverse backgrounds, including minority ethnic communities, and it updated its uniform The Commission notes the Committee’s policy to permit the wearing of turbans recommendations to States to promote and hijabs.761 However, recent reports the proper representation of people belonging to ethnic groups in the criminal justice system, including through the 759 The Committee, General Recommendation XXXI, p.4 recruitment of members of the Roma and The Committee, General Recommendation XXVII, p.2. 760 The Commission on the Future of Policing in Ireland, The Future of Policing in Ireland, p. xiv and An Garda Síochána (2019), An Garda Síochána People Strategy 2019–2021. The new Diversity and Integration Strategy 2019–2021 also 758 Section 17(2). As noted in section 6, it has been includes a commitment to identify the barriers to recruiting reported that preparatory research is currently underway and retaining people from diverse and minority backgrounds under the guidance of Chief Justice Frank Clarke for the as Garda members, staff and Reserves. See An Garda formation of the Judicial Studies Committee, including Síochána, Diversity and Integration Strategy 2019–2021, p.9. benchmarking against comparable jurisdictions such as 761 An Garda Síochána (2019), An Garda Síochána Opens Scotland. See Law Society Gazette (3 October 2019), ‘“Hit the Recruitment Competition for Garda Trainees. Note, the ground running” on Judicial Council – Clarke’. updated uniform policy follows a 2013 challenge to the

140 IHREC CERD Submission | October 2019 demonstrate that only 86 members of Criminalisation of minority ethnic communities are in An Garda prostitution Síochána, including one member from the Traveller community and no members from the Roma community.762 Applications from The Commission notes the State’s people from minority ethnic communities obligations under Article 6 of the to join An Garda Síochána are down to Convention on the Elimination of All Forms 2.3%, compared with almost 15% nine of Discrimination against Women to take all years ago.763 The Commission also notes appropriate measures, including legislation, calls for the increased recruitment of to suppress all forms of exploitation of staff from minority ethnic communities prostitution of women. Although there is within the Prison Service, including limited research and data available, it has members of the Traveller community.764 been reported that a significant proportion of people involved in prostitution in Ireland • are from minority ethnic communities.765

The Commission recommends that An Section 11 of the Criminal Law (Sexual Garda Síochána and other public bodies Offences) Act 1993 prohibits ‘brothel in the criminal justice sector should set keeping’. In 2017, the 1993 Act was specific targets for diversity in their amended to criminalise the purchase recruitment procedures. of sex and to increase the maximum punishment for brothel keeping.766 The CSO has reported that there were 43 recorded crime incidents related to brothel keeping in 2017 and 2018.767

The Commission is concerned that increasing the penalty for the offence of brothel keeping (where a brothel is defined in terms of a Equality Tribunal and High Court by a member of the Irish premises used by more than one person) Sikh community that the refusal to allow those training for will continue the criminalisation of people the Garda Reserve to wear a turban on duty constituted working together for safety, and place them discrimination. Although the applicant was unsuccessful, the Court’s decision was based on the specific facts of the case in greater danger as they may opt to work (the applicant was a reserve member and did not fall within alone despite the risks involved.768 There the definition of an employee). See The Commissioner of An have been recent reports of the conviction Garda Síochána & Anor v Oberoi & Ors [2013] IEHC 267 and M. Hennessy (23 January 2019), ‘Garda management feared Sikh members could win discrimination cases over turban ban’, The Journal. 762 ECRI, Report on Ireland (Fifth Monitoring Cycle), p.20. 765 See Immigrant Council of Ireland (2009), Globalisation, Reports also indicate that people from ethnic minority Sex Trafficking and Prostitution: The Experiences of Migrant groups form just 0.4% of An Garda Síochána. See C. Women in Ireland, p.23 and Pavee Point Traveller and Roma Gallagher (2018), ‘Just one in 240 Gardaí from a minority Centre (2013), Submission to the Joint Oireachtas Committee background’, The Irish Times. on Justice, Equality and Defence: Review of Legislation on 763 ECRI, Report on Ireland (Fifth Monitoring Cycle), p.20. Prostitution. 764 See IPRT (2014), Travellers in the Irish Prison System 766 Section 7A of the Criminal Law Sexual Offences 1993. – A Qualitative Study, p.6 and G. McNamee (11 February 767 Information received from the CSO on 15 July 2019. 2018), ‘The Irish Prison Service needs more women and ethnic 768 IHREC (5 September 2016), Submission to GRETA in minorities to become prison officers’, The Journal. Advance of its Second Evaluation Round of Ireland, p.12.

IHREC CERD Submission | October 2019 141 of two women, both from Romania and one welfare payments, their overrepresentation of whom was pregnant, for working together in the homelessness population, and the in a brothel.769 Research has also indicated higher rates of discrimination they face that the brothel keeping offence causes in the labour market, for example.772 women to distrust the police, resulting in a reluctance to report abuse or other incidents due to a fear of prosecution.770 ʽCivil legal aid is unavailable • for certain areas of law and administrative decisions, The Commission recommends that the State review the operation of acting as a barrier for section 11 of the Criminal Law (Sexual people from minority ethnic Offences) Act 1993 concerning the communities seeking to interpretation of ‘brothel keeping’. access justice. Access to legal aid, advice, and assistance The legal aid scheme does not extend to eviction proceedings, which has a disproportionate impact on Travellers due Civil legal aid is unavailable for certain areas to the increase in forced evictions and the of law and administrative decisions, acting suppression of nomadism as a cultural as a barrier for people from minority ethnic practice.773 Furthermore, such evictions communities seeking to access justice. The often take place in the evening, which can Legal Aid Board is precluded from providing make it very challenging to access timely representation before quasi-judicial tribunals legal assistance.774 The Commission also and bodies dealing with social welfare appeals, notes that the Irish Traveller Movement housing issues, and employment and equality Independent Law Centre closed in 2014 due cases.771 These matters can be extremely to lack of funding.775 It is of the view that complex and, as highlighted throughout legal services providing specialist advice and this submission, they can present particular representation on the particular forms of issues for minority ethnic communities due discrimination experienced by Travellers is to the residency requirements for social necessary to ensure equal access to justice.776

772 See sections 9 and 11 in particular. 769 S. Pollak (10 June 2019), ‘Jailing of sex workers keeping 773 Committee on the Rights of the Child, Concluding brothel shows law “not fit for purpose”’, The Irish Times. Observations on the Combined Third and Fourth Periodic 770 L. A. Sweeney and S. FitzGerald (2017), ‘A case for a Reports of Ireland, p.12. health promotion framework: the psychosocial experiences 774 See Dáil Debates (20 January 2016), ‘Topical issue of female, migrant sex workers in Ireland’, International debate – Traveller accommodation’ and Pavee Point Traveller Journal of Migration, Health, and Social Care, 13(4), pp.419– and Roma Centre (4 July 2019), ‘Private security firms for 443. Traveller evictions – serious cause for concern’. 771 Human Rights Council (2011), Report of the UN 775 See National Traveller Mabs, ‘Ireland in breach in practice Independent Expert on Extreme Poverty and Human Rights, and in legislation of Traveller’s housing, accommodation and Magdalena Sepúlveda Carmona: Mission to Ireland, A/ eviction rights’. HRC/17/34/Add.2, p.4. 776 The Commission notes that the NGO, Free Legal

142 IHREC CERD Submission | October 2019 • of a protection applicant.780 The availability of legal documentation in accessible formats The Commission recommends that the and different languages has also been remit of the Legal Aid Board be reviewed identified as a barrier to accessing justice.781 and that civil legal aid services are made available in a wider range of areas.777 •

Recalling its recommendation in section • 10 of this submission, the Commission is of the view that interpreting The Commission recommends that the services for legal and administrative State support the sustained provision proceedings should be professionalised of specialist legal services to minority and regulated, including through ethnic communities. the development of a system of accreditation and training. Interpreting services Multiparty litigation The Commission is concerned about the lack of accredited training, quality assurance Ireland does not have a mechanism for mechanisms, and regulations pertaining to multi-party litigation, thereby preventing interpreting services in Ireland. It has resulted victims of rights violations and discrimination in the limited availability of appropriately from collectively seeking redress and trained interpreters with technical expertise compensation. This can present a particular for legal proceedings,778 as well as variation barrier in encouraging specific groups in the standard of interpreting services to come forward and access justice, provided.779 In particular, poor interpreting including victims of trafficking, for example. can affect a court’s perception of a defendant Facilitating such collective action would or a tribunal’s assessment of the credibility permit multiple claimants to share the cost of judicial proceedings and expedite the resolution of their cases, with the overall objective of expanding access to Advice Centres, is recruiting a solicitor to provide a 782 specialised legal service to the Traveller community. justice and procedural efficiency. The However, this position only has funding for three years under Commission notes that the Law Reform the Community Foundation for Ireland. Commission recommended the introduction 777 The recommendation was also made by the UN Committee on Economic, Social, and Cultural Rights in 2015. See UN Committee on Economic, Social, and Cultural Rights (8 July 2015), Concluding Observations of the Committee on Economic, Social and Cultural Rights: Ireland, E/C.12/IRL/ 780 Irish Translators’ and Interpreters’ Association (2002), CO/3, para 8. Submission to the Working Group on the Jurisdiction of the 778 In addition to issues in accessing justice, the lack of Courts, p.2. appropriate qualified and skilled interpreters also impedes 781 Joint Oireachtas Committee on Justice and Equality access to healthcare services. For further information, see (13 March 2019), ‘Reform of family law system: discussion section 10. (resumed)’. 779 Law Society Gazette (2017), ‘A matter of interpretation: 782 For further information, see FLAC (February 2018), legal interpretation in Ireland’ and Joint Committee on Justice Submission on the Multi-Party Actions Bill 2017: A submission and Equality (13 March 2019), ‘Reform of family law system: by FLAC to the Joint Oireachtas Committee on Justice and discussion (resumed)’. Equality.

IHREC CERD Submission | October 2019 143 of multi-party litigation in 2005, but this applicants to provide to the court all legal recommendation was never implemented.783 authority relevant to the case, such as case law and legislation, and in particular, • all such legal authority that is adverse to their application and an accompanying The Commission recommends that explanation.787 The Commission is concerned the State reconsider the Law Reform that the additional burden of producing Commission’s recommendation on the such substantial written submissions at introduction of a multi-party litigation leave stage might frustrate the making mechanism to provide for collective of timely leave applications. PD81 also redress. requires that all the applicant’s documents be translated into Irish or English by a qualified translator.788 It can be difficult Practice Direction 81 and costly789 for applicants to obtain translations at short notice, which can inhibit The recent High Court Practice Direction the making of a judicial review application 81 (PD81)784 introduces several new within the specified 28-day timeframe. obligations for applicants involved in judicial review proceedings on asylum, Moreover, PD81 does not appear to immigration, citizenship, and EU Treaty fully consider the situation of applicants Rights. The Commission has concerns in vulnerable circumstances. The about the financial burden and the Commission is concerned that some procedural complexity PD81 places on potential litigants, such as minors and applicants and the extent to which this people with capacity issues, might find acts as a barrier for migrants and their it particularly difficult to cooperate with families seeking to access justice.785 their legal representatives towards discharging the requirements of PD81 in Firstly, PD81 requires applicants to the short time periods that often attend provide a significant amount of personal the making of ex parte leave applications. information to the court regarding their case.786 More specifically, it requires The Commission is also concerned that PD81 places disproportionate burdens on the applicant’s legal representatives, which may,

783 Law Reform Commission (2005), Report on Multi-Party Litigation. 784 PD81 came into force in the High Court in Ireland on State or elsewhere, and the outcomes and dates of each; and 1 January 2019, with an explanatory note issued later that their complete immigration history since leaving their country month. of origin. 785 Bloomsbury Professional (24 January 2019), ‘Irish 787 Direction 7E. immigration and asylum law briefing’; Law Society Gazette (22 788 Courts Service of Ireland, HC81 – Asylum, Immigration January 2019), ‘Judge tells solicitors his door open on asylum and Citizenship List. See para. 5(3) of the Practice Direction. ruling’; and E. Edwards (21 January 2019), ‘High Court clarifies Para. 17 of the explanatory note states that the requirement practice direction for immigration and asylum cases’, The Irish to provide translations will only apply if such translation Times. existed before the proceedings, if the parties producing the 786 This includes full details of any potentially relevant document is relying on such document, or if directed by the previous civil or criminal proceedings they have been court. involved in, whether in the State or elsewhere; all protection 789 There is no provision for legal aid towards the cost of or immigration applications previously made, whether in the translating documents.

144 IHREC CERD Submission | October 2019 in turn, affect the applicant’s ability to access The Commission is concerned that an justice. If an applicant’s solicitor is unable applicant might find it extremely challenging to take instructions about the applicant’s to discharge the requirements of PD81, background and immigration history, the leading to an inability to access justice solicitor is ‘required personally to set out and to vindicate fundamental rights. The on affidavit exactly why no, or inadequate Commission understands there was a or unsuccessful, efforts have been taken to very considerable fall-off in the numbers seek out and obtain the information.’790 In of ex parte applications after this Practice the limited timeframe available for judicial Direction was introduced. As stated above, review proceedings, the onus on the solicitor PD81 is limited to asylum, immigration, to make efforts to seek information can be citizenship, and EU Treaty Rights, and particularly onerous. Moreover, Direction some of the requirements therein are not 7(8)(b)(i) requires that the solicitor swear an imposed in other areas of judicial review. affidavit to the effect that every statement The Commission is therefore concerned made by or on behalf of the applicant that it imposes a disadvantage on migrants. or family member to any immigration or The Commission welcomes, however, the protection body, in the State or elsewhere, recent consultation undertaken by the has been disclosed. This may be impossible High Court on the operation of PD81.791 to discharge, as an applicant’s solicitor would likely have no way of knowing whether • their client has disclosed every statement that a family member’s solicitor has made The Commission recommends that on their behalf in foreign jurisdictions. the State address the implications Furthermore, Direction 7(9) requires that of Practice Direction 81 on migrants’ both the applicant and the applicant’s access to justice. solicitor swear and submit further affidavits of verification if they make assertions, claims, or representations not contained in the original affidavit. The preparation and filing of all of these affidavits can be onerous and very costly, especially if translation is required.

ʽPD81 places disproportionate burdens on the applicant’s legal representatives, which may, in turn, affect the applicant’s ability to access justice.

791 Courts Service (28 June 2019), General Notices: 28th 790 Direction 7(6)(c). June 2019 PD HC81.

IHREC CERD Submission | October 2019 145 Section 16 Human Rights Leadership (Article 7) The Commission notes •

Ireland’s express commitment The Commission recommends that to advancing its impact at an the State build on its ratification of the Istanbul Convention by adopting international level, including a strong leadership role on the through the promotion international stage in promoting the of human rights, greater protection of women’s rights. equality and justice, and Rescue and humanitarian sustainable development.792 missions

Promotion of women’s rights In a visit to Ireland in July 2019, Filippo Grandi, the UNHCR, criticised the EU for winding down Operation Sophia, the migrant There is currently a pervasive pushback rescue operation in the Mediterranean on core and well-established concepts Sea, which included the Irish naval ship of women’s rights on the international the LÉ Eithne. This operation was due stage. At both the Sixty-Third Session of to expire in March 2019, and although the Commission on the Status of Women it was extended until September 2019, in March 2019 and a UN Security Council sea patrols were suspended.795 Reports Debate in April 2019, the most difficult indicate that the Irish naval presence in issues in the negotiations related to the Mediterranean has rescued more proposed language on access to sexual and than 18,000 people as of April 2019.796 reproductive health services for victims and survivors of gender-based violence.793 There • is also a current trend at an international level to roll-back on legal protections The Commission recommends against domestic violence and FGM.794 that the State detail its plans and arrangements to work with other governments to ensure ongoing rescue and humanitarian missions in the Mediterranean.

792 Government of Ireland (June 2018), Global Ireland: Ireland’s Global Footprint to 2025. 793 UN (22 March 2019), Concluding Sixty-Third Session, 795 S. Carswell (12 July 2019), ‘Government too reliant Women’s Commission Approves Text on Strengthening Social on market in tackling housing crisis, says UNHCR chief’, Protection Systems, Sustainable Infrastructure for Gender The Irish Times and J. Rankin (27 March 2019), ‘EU to stop Equality and Women’s International League for Peace and Mediterranean migrant rescue boat patrols’, The Guardian. Freedom (23 April 2019), Security Council Open Debate: 796 O. Ryan (1 April 2019), ‘Decision to end migrant rescue Sexual Violence in Conflict. operation labelled “outrageous abdication of responsibilities”’, 794 UN Secretary-General (8 March 2019), ‘Secretary- The Journal and Seanad Éireann (9 July 2019), ‘Defence General’s remarks on International Women’s Day 2019’. matters: statements’.

IHREC CERD Submission | October 2019 146 Business and human rights and their plans to address such impacts.800

The Commission notes the positive The Commission welcomes the adoption obligation on the State to ensure that all Irish of the National Plan on Business and Human businesses respect human rights throughout Rights 2017–2020,801 as it represents a their operations and take measures to commitment on the part of the State avoid negative impacts on human rights to protect human rights from being in their supply chains and procurement infringed by third parties, including contracts.797 This is consistent with the business enterprises.802 The National Plan statutory obligation on public bodies to commits to encouraging and supporting actively promote human rights and equality in effective human rights due diligence by the performance of their functions, including State-owned or controlled companies.803 where they sub-contract their functions to A recent baseline assessment of the non-State actors, under the Public Sector legislative and regulatory framework, Equality and Human Rights Duty.798 commissioned by the government, found that the commitments in the National Other UN human rights bodies have Plan proposed a largely voluntary regime previously highlighted the impact of business regarding due diligence, which may not on human rights in Ireland.799 In 2016, the result in compliance across the board or Committee on the Rights of the Child called may lead to delays in businesses achieving on the State to strengthen its regulatory compliance. For the State to continue to and monitoring framework to ensure that develop its reputation in the protection of the business sector, including in the context human rights, it was recommended that of public procurement, complies with consideration be given to the adoption of international and national human rights, mandatory human rights due diligence.804 labour, environment and other standards. It also specifically called for a requirement The Commission notes that since on companies to undertake assessments, the launch of the National Plan, the consultations, and full public disclosure of the Department of Foreign Affairs and Trade environmental, health-related, and human established a Business and Human Rights rights impacts of their business activities Implementation Group in January 2019 focused on overseeing the implementation

797 See UN Office of the High Commissioner for Human Rights (2011), Guiding Principles on Business and Human 800 Committee on the Rights of the Child, Concluding Rights: Implementing the United Nations ‘Protect, Respect Observations on the Combined Third and Fourth Periodic and Remedy’ Framework. See also, IHREC (March 2015), Reports of Ireland, para. 23–24. Submission on Ireland’s National Action Plan on Business and 801 Government of Ireland, National Plan on Business and Human Rights, pp.13–14. Human Rights 2017–2020. 798 For further information on the Public Sector Equality 802 For further commentary by the Commission on the and Human Rights Duty, see section 3. National Plan, see IHREC, IHREC Submission on Ireland’s 799 For example, the UN Human Rights Committee asked National Action Plan on Business and Human Rights. the Irish government in 2013 to address concerns regarding 803 Government of Ireland, National Plan on Business and the activities of private businesses based in the State party Human Rights 2017–2020, p.18. that may lead to violations of the Covenant outside the 804 ReganStein (March 2019), National Plan on Business territory of the State party. See Human Rights Committee and Human Rights: Baseline Assessment of Legislative and (22 November 2013), List of issues in Relation to the Fourth Regulatory Framework, (Department of Foreign Affairs and Periodic Report of Ireland, para. 5. Trade), pp.20–21.

147 IHREC CERD Submission | October 2019 of the UN Guiding Principles on Business that Ireland has not signed or ratified and Human Rights in Ireland.805 the International Convention on the Protection of the Rights of All Migrant • Workers and Members of their Families.

The Commission recommends that In recent years, concerns have arisen the State should consider introducing regarding the exploitation of migrant workers human rights due diligence as a in the Irish fishing industry. In its report to the mandatory requirement with legislative Committee, the State referenced its Atypical underpinning, including in the context Working Scheme for Seafarers, which permits of government procurement.806 ‘a lawful pathway for persons, previously with no immigration or employment permission, to work in the Irish Fishing Fleet.’807 • GRETA recommended in 2017 that the The Commission recommends that State review ‘the application of the Atypical the Business and Human Rights Working Scheme in the fisheries industry Implementation Group should with a view to ensuring that it contains examine the implementation of sufficient safeguards against trafficking recommendations by UN human rights and exploitation of fishermen.’808 Similar bodies on business and human rights concerns have been jointly raised by UN and the implementation of the State’s special rapporteurs in a joint letter to Ireland obligations under the Public Sector in February 2019, noting that the scheme Equality and Human Rights Duty. ‘does not provide for effectively preventing and combatting trafficking in people for the purpose of forced labour and labour exploitation in the fishing industry, nor The fishing industry and does it provide for adequate protection Atypical Working Scheme of the rights of migrant fishermen.’809

The rights of migrant workers and their family members are particularly relevant in this context, given the risks that they face concerning exploitation and abuse by business enterprises. 807 The Committee, Combined Fifth to Ninth Periodic However, as referenced in section 3 of Reports Submitted by Ireland Under Article 9 of the Convention, para. 230. this submission, the Commission notes 808 GRETA, Report Concerning the Implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Ireland, para. 79. 809 Joint letter sent to the Irish government on 805 Department of Foreign Affairs and Trade (27 February 12 February 2019 by UN special rapporteurs on the 2019), Human Rights. human rights of migrants; contemporary forms of 806 The Commission previously made this racism, racial discrimination, xenophobia, and related recommendation to the Committee on the Rights of the intolerance; contemporary forms of slavery, including Child in 2015. See IHREC, Report by the Irish Human Rights its causes and consequences; and trafficking in people, and Equality Commission to the UN Committee on the Rights especially women and children. The letter is available of the Child on Ireland’s Combined Third and Fourth Periodic at: www.spcommreports.ohchr.org/TMResultsBase/ Reports, p.12. DownLoadPublicCommunicationFile?gId=24331.

IHREC CERD Submission | October 2019 148 The International Transport Workers’ The Commission wishes to note its concern Federation has taken action against the regarding the heavy reliance of the State- State on behalf of workers affected and owned Electricity Supply Board (ESB) 812 on potentially affected by the operation of coal mined from the Cerrejón mining complex the scheme, alleging that the scheme in La Guajira, north-eastern Colombia. Recent created a real and substantial risk of human reports have indicated that up to 90% of trafficking and other forms of severe labour the coal burned at the ESB’s Moneypoint813 exploitation. In October 2018, the High power station in County Clare comes from Court granted the Commission leave to Colombia, with two-thirds of it purchased intervene as amicus curiae in the case. In from the Cerrejón mine.814 The operation of April 2019, a mediated settlement was the Cerrejón mine has been linked with serious agreed, the terms of which included several human rights abuses, including the forceful changes to the Atypical Working Scheme.810 displacement of thousands of indigenous Wayúu, Afro Colombian, and Campesino • populations, and contamination of farmland and drinking water.815 The sales branch of the The Commission recommends that Cerrejón mine has headquarters in Dublin.816 the State ratify the International Convention on the Protection of the The Commission notes the Committee’s clear Rights of All Migrant Workers and articulation of the applicability of Convention Members of their Families and take the provisions to indigenous peoples.817 The necessary measures to ensure its full Commission further notes the reference in the incorporation at a domestic level. UN Guiding Principles on Business and Human

State purchasing of Colombian coal and IHREC, Submission on Ireland’s National Action Plan on Business and Human Rights. 812 The ESB was established in 1927 as a statutory It is recognised that the State has a positive corporation. The Irish government has a 95% holding in the obligation to take additional steps to protect company, with the remaining 5% held by the trustees of an against human rights abuses by business Employee Share Ownership Plan. See www.esb.ie/who-we- enterprises that it owns, controls, or to are/about-esb/. 813 Moneypoint is one of Ireland’s largest power plants, 811 which it provides support or contracts. with a capacity of around 7 million MW hours per year. It burns approximately two million tonnes of coal per annum. See ‘Electricity Supply Board station portfolio’. 814 N. Healy (25 October 2018), ‘Blood Coal: Ireland’s dirty 810 Changes included: flexibility for non-EEA fishermen to secret’, The Guardian and S. Pollak (11 May 2019), ‘Coal move to another vessel within a defined time without risk “stained with Colombian blood” is bought and sold in Dublin’, of visa cancellation and deportation (such a move cannot The Irish Times. be vetoed by employers); streamlining of inter-agency 815 N. Healy, J. C. Stephens, and S. A. Malin, ‘Embodied collaboration between the WRC, Marine Survey Office, and energy injustices: Unveiling and politicizing the the Gardaí to combat exploitation onboard fishing vessels; transboundary harms of fossil fuel extractivism and fossil and greater promotion of awareness among non-EEA fuel supply chains’, Energy Research and Social Science, 48, fishermen of their rights and entitlements. See IHREC pp.219–234. (30 April 2019), ‘Changes to atypical work permit scheme 816 CMC – Coal Marketing DAC, Fumbally Square, New for migrant fishers welcomed by human rights and equality Street, Dublin. Company website: http://www.cmc-coal.ie/. commission’. 817 The Committee (1997), General Recommendation No. 811 See UN Office of the High Commissioner for Human 23: Indigenous Peoples, A/52/18, annex V. In particular, the Rights, Guiding Principles on Business and Human Rights Committee stresses the rights of indigenous peoples to

149 IHREC CERD Submission | October 2019 • ʽRecent reports have The Commission recommends that the indicated that up to 90% of State continue to raise concerns about the coal burned at the ESB’s human rights abuses in the Cerrejón Moneypoint power station mine with the government of Colombia and lend its support to the initiation in County Clare comes from of an independent inquiry into the Colombia, with two thirds operation of the mine, and restitution of it purchased from the and compensation for victims of displacement and other human rights Cerrejón mine. abuses.

Rights to states’ role in reducing the risk of gross human rights abuses in regions affected • by conflict,818 as well as the Irish government’s significant leadership role in the Colombian The Commission further recommends peace process.819 Furthermore, the Climate that, in line with its actions on Action Plan 2019 includes a commitment to ‘Corporate Responsibility’ and ‘Access the ‘early and complete phase-out of coal- and to Remedy’ in the National Plan on peat-fired electricity generation’ by 2030.820 Business and Human Rights,822 the State engage with companies domiciled The Department of Foreign Affairs and Trade in Ireland with links to the Cerrejón has recognised the detrimental impact of mine regarding human rights abuses the activities in the Cerrejón mine on the occurring there. environment and local communities. Officials from the Irish Embassy in Bogotá also recently met with representatives of the mine and partner organisations to discuss the human rights issues that have been raised.821

own, develop, control, and use their communal lands and resources, and has underscored the right of indigenous communities to restitution and compensation. 818 Guiding Principle 7: ‘Because the risk of gross human rights abuses is heightened in conflict-affected areas, States should help ensure that business enterprises operating in those contexts are not involved with such abuses’ of the UN Office of the High Commissioner for Human Rights, Guiding Principles on Business and Human Rights. 819 For an overview of Ireland’s contribution, see Department of Foreign Affairs and Trade (2017), Year in Review 2016. 820 Government of Ireland (2019), Climate Action Plan 2019, p.53. 821 Department of Foreign Affairs and Trade (27 February 2019), Human Rights, and Department of Foreign Affairs and 822 Government of Ireland, National Plan on Business and Trade (17 September 2019), Human Rights Cases. Human Rights 2017 – 2020, p.18.

IHREC CERD Submission | October 2019 150 Appendix List of Recommendations Section 3: National Machinery for the Promotion of Race Equality

• The Commission recommends Duty, public bodies promote the participation of rights holders, and that the State ratify the relevant human rights of, and eliminate include data specialists. international treaties and protocols discrimination against, minority as a matter of priority, including ethnic communities through their • The Commission recommends through prioritising the passage of work. that the State implements its any legislative and policy reforms obligation to ensure the effective necessary for ratification. • The Commission recommends participation of minority ethnic that when the State subcontracts communities in the process • The Commission recommends its functions to non-State actors, of developing, monitoring and that the State incorporate CERD compliance with the Public Sector reviewing policy frameworks, at into domestic law. Equality and Human Rights both a national and local level. Duty should be included as a • The Commission recommends requirement in all procurement • The Commission recommends that the State withdraw its processes and service level that the State improves its reservation/interpretative agreements. collection and reporting of data on declaration on Article 4 of CERD as minority ethnic groups across all a matter of priority. • The Commission recommends sectors, to inform policy-making, that the equality legislation is legislative reform, and service • The Commission recommends amended to prohibit discrimination provision. that a full parliamentary on the ground of socio-economic Committee on Human Rights, status in all areas covered by the • The Commission calls on the Equality and Diversity, covering legislation and to permit claims State to ensure that organisations all thematic areas arising in other across multiple grounds. working with minority ethnic parliamentary committees, be communities across a range of established. • The Commission recommends sectors receive adequate support. that the State return complaints of • The Commission recommends discrimination in licensed premises • The Commission recommends that the Inter-Departmental to the purview of the Equal Status that a review of the Electoral Committee on Human Rights Acts and the jurisdiction of the Acts be undertaken to ensure and the DFAT Committee on Workplace Relations Commission. an enabling legal framework and Human Rights fully engage with a conducive political and public the parliamentary Committee • The Commission recommends environment for civil society on Human Rights, Equality that the State should put in place organisations advocating for and Diversity, following its a new national action plan against minority ethnic communities. establishment as recommended racism. above. • The Commission recommends • The Commission recommends that the work of the new anti- that, in complying with their racism committee should be obligations under the Public grounded in human rights and Sector Equality and Human Rights equality standards, ensure the

IHREC CERD Submission | October 2019 153 Section 4: Legal Framework on Citizenship and Nationality

• The Commission recommends private and family life and to have • The Commission recommends that the State provide statutory meaningful access to employment. that the State review section 19 of underpinning for the good the Irish Nationality and Citizenship character requirement to increase • The Commission recommends Act 1956 on the revocation of transparency and consistency in the introduction of a statutory right citizenship concerning guarantees its application, with recognition of to an independent appeals process of due process and fair procedure children as individual rights holders for citizenship-by-naturalisation and the need for clarity on the duty and people’s right to access justice. decisions. of fidelity to the nation or loyalty to the State. • The Commission recommends • The Commission recommends that the State provide statutory that the State immediately makes • The Commission recommends underpinning for the continuous legal aid available to all people in that the State develop a residence requirement, adopting respect of whom the Minister for statelessness determination an expansive interpretation that Justice and Equality proposes to procedure in line with its obligations takes into account people’s right to revoke citizenship. under international law.

Section 5: Experiences of Racial Discrimination and Attitudes to Diversity

• The Commission recommends Convention for the Protection of to ensure the latter part of the the use of victimisation surveys National Minorities on addressing Decade is appropriately marked. to increase public understanding the discrimination faced by of the prevalence and impact of Travellers and Roma. • The Commission recommends racial discrimination in Ireland, that the State adopt public including the multiple forms of • The Commission is of the awareness-raising and discrimination faced by women. view that the State has not given education measures to address adequate priority to marking the discrimination and prejudice, • The Commission recommends International Decade for People of including on the grounds of race that the State implement the African Descent and recommends and religion, and to specifically recommendations of the Advisory that it redouble its efforts to address the discrimination faced Committee on the Framework develop a programme of action by minority ethnic women.

Section 6: Hate Speech and Hate Crime

• The Commission is of the view Prohibition of Incitement to Hatred to hate motivation does not that the Prohibition of Incitement Act 1989, in line with the recent adequately meet its international to Hatred Act 1989 is outdated recommendations of ECRI, and obligations. and inadequate to effectively including with a view to addressing address hate speech that calls for a online incitement to hatred and • The Commission recommends response in criminal law. hate speech. that statutory provision be made for aggravation and penalty • The Commission recommends • The Commission is of the view enhancements for crimes the modernisation of the that Ireland’s current approach motivated by hate or prejudice.

154 IHREC CERD Submission | October 2019 • The Commission recommends • The Commission recommends takedown procedures for removing the development of legislative that members of An Garda harmful content online should measures for the creation of Síochána should be equipped be subject to codes of practice substantive hate-motivated to understand, recognise, and transparency concerning the criminal offences. and thoroughly investigate all prevalence of online hate speech instances of hate crime through and the measures being taken by • The Commission recommends dedicated training, both during internet intermediaries to address that the State develop and commit general training at Garda College it. Compliance with the framework to a clear, time-bound action plan and through specialist modular should be overseen and enforced for review and modernisation learning at in-service level, by an independent statutory body of hate crime law and practice including targeted training for: and should be promoted by way in Ireland to bring it in line with • assisting victims of specific of effective and proportionate its international obligations, types of hate offences sanctions. undertaken in full consultation with • accurate, reliable, and timely groups targeted by hate crime in data recording on PULSE. • The Commission recommends Ireland, and with the participation that the State promote and of civil society organisations • The Commission recommends advance digital literacy as a representing them. that the State consider the core skill for people of all ages establishment of alternative to combat prejudicial and • The Commission recommends reporting mechanisms by which discriminatory content and hate that the review include the victims or witnesses can report speech online. development of appropriate hate crime offences, including education measures for key actors the establishment of third- • The Commission recommends in the criminal justice system, party reporting mechanisms in that the State encourage the including the judiciary, prosecutors, partnership with civil society media to update their codes of and investigators. organisations. professional ethics and press codes to reflect the challenges of • Noting the commitments in • The Commission recommends the modern media environment the new Diversity and Integration the use of victimisation surveys, where the circulation of prejudicial Strategy 2019–2021, the which include hate crime specific and discriminatory content and Commission recommends the questions, and are supplemented hate speech are concerned, and to timely comprehensive reform of by booster samples of groups explicitly incorporate the principles the PULSE system, including the traditionally underrepresented or of CERD and other fundamental implementation of a stronger excluded from standard national human rights standards. governance framework and overall surveys. improvements in data collection • The Commission recommends by An Garda Síochána in line with • The Commission recommends that the State encourage Central Statistics Office standards. that the State develop a appropriate training for editors comprehensive regulatory and journalists as to the nature • The Commission recommends framework to combat prejudicial and dynamics of hate speech that guidelines and protocols for and discriminatory content and to avoid the publication and the recording of discriminatory hate speech online. inappropriate framing of news and motives are developed editorial content that is prejudicial, transparently and made publicly • The Commission recommends discriminatory, or triggers hate available. that under this framework, speech or incidents. the operation of notice-and-

IHREC CERD Submission | October 2019 155 • The Commission recommends hate speech, such as codes of breach of their provisions. that compliance with regulatory conduct, should be supported by mechanisms aiming to prevent way of dissuasive sanctions for

Section 7: Participation in Public Life and Representation in Decision-Making

• The Commission recommends complementary measure to the appropriate sanctions for breach of that the government’s proposed introduction of gender quotas. their conditions. Electoral Commission be mandated to promote more • The Commission recommends • The Commission recommends equal political participation of that special measures to support that public officials and elected groups, including minority ethnic engagement in public and political representatives be provided with communities. life should be designed and training in equality and non- implemented with the active discrimination to ensure they are • The Commission recommends participation of the communities equipped to recognise and respond that the State undertake additional they concern and should include effectively to prejudicial and positive action measures to targeted interventions for specific discriminatory discourse and hate enable the political participation of minority ethnic groups, for speech. minority ethnic groups, such as the example, women. introduction of reserved seats in • The Commission recommends Parliament and local government. • The Commission recommends that the government’s proposed that codes of conduct for public Electoral Commission be • The Commission recommends officials and election candidates mandated to uphold standards in that the State introduce a should clearly prohibit the use political discourse during election quota system for minority or endorsement of prejudicial and referendum campaigns, with a ethnic candidates in political and discriminatory discourse. specific focus on discourse relating party candidate selection, as a These codes should provide for to minority ethnic groups.

Section 8: Education

• The Commission recommends the restoration of the Visiting supports for children and families that the use of a connection with Teaching Service for Travellers. who require it. a former student of the school as a criterion in the admission of a • The Commission recommends • The Commission recommends child is prohibited. the introduction of appropriate the introduction of additional safeguards to monitor the use of support services to ensure that • The Commission recommends reduced timetables and to ensure children in the asylum process that targeted educational that they are not used in place are placed in local mainstream supports must be available for of the provision of appropriate schools without delay, regardless Traveller and Roma children from supports in any circumstances. of whether they are in emergency the early years and throughout accommodation. school, including through • The Commission recommends the timely evaluation of the the consistent provision of • The Commission recommends proposed pilot programme and additional English language increased diversity in the provision

156 IHREC CERD Submission | October 2019 of primary and secondary schools existing anti-bullying programmes institutions are evaluated in line within educational catchment targeting racially motivated with the Public Sector Equality areas throughout the State. bullying. and Human Rights Duty to ensure their accessibility to minority • The Commission recommends • The Commission recommends ethnic groups and address any the introduction of mandatory that the State consider remaining administrative and programmes on promoting implementing a policy similar to financial barriers. understanding and combatting the Pilot Student Support Scheme racism and on Traveller history to facilitate undocumented • The Commission recommends and culture for inclusion in the people’s access to third-level that the State introduce practical school curriculum and initial and education. supports to increase the continuous teacher education accessibility of apprenticeships programmes. • The Commission recommends to people from minority ethnic that all measures introduced groups, including the adoption of • The Commission recommends to support participation in specific measures for women. the inclusion of specific actions in further education and third-level

Section 9: Employment and Economic and Social Life

• The Commission recommends equivalents as appropriate. access to banking services and that the State take concrete driving licence applications. measures to address • The Commission recommends discrimination in the workplace, that the State disseminate • The Commission recommends including in relation to recruitment, accessible information and that, in line with emerging pay, and promotion. educational materials to people standards and UNHCR guidance, who migrated to Ireland on the applicants for international • The Commission recommends employment system and the protection be granted access to that the State consider opening administrative requirements in the labour market no later than six civil service employment to place. months after the date of lodging migrants from outside the an application. European Economic Area. • The Commission is of the view that measures for access to the • The Commission recommends • The Commission recommends labour market for asylum seekers that an audit of the skills, that the State target the must be effective in practice, qualifications, and labour market recruitment of minority ethnic sufficient in their scope to provide profile of the current cohort of groups in the public sector. meaningful access to employment international protection applicants and safeguard against potential be carried out to ensure effective • The Commission recommends exploitation and discrimination. access to the labour market. that the State introduce a formal recognition process for the • The Commission recommends • The Commission recommends systematic assessment and that the State conduct a review that the State support the recording of education, skills, of the scheme for labour market development of a national labour and work experience gained access for asylum seekers to market activation programme, in abroad, facilitating the transfer identify and address the ongoing collaboration with professional of qualifications into domestic administrative barriers, including and trade associations, focused

IHREC CERD Submission | October 2019 157 on ensuring that international Enterprise conduct a review of the Commission recommends that the protection applicants can State’s Critical Skills Employment State should review the Habitual retain and further develop their Permit from a gender perspective. Residence Condition and its impact qualifications, experience, and In particular, the Minister should on minority ethnic communities in skills. consider the creation of permits practice. for domestic work. • The Commission recommends • The Commission recommends that protections for domestic • The Commission recommends that the State support Travellers workers are strengthened, that the national targets and in preserving and developing their including through enhancement measures adopted by the State identity and culture, including of labour inspections and the to reduce poverty take adequate nomadism and horse ownership. oversight of employers. account of the specific issues and multiple disadvantages faced by • The Commission recommends • The Commission recommends minority ethnic groups, and that that the State engage in that the State consider the an accelerated programme of consultations with the development of a regularisation initiatives is put in place to make up Traveller community about the scheme for undocumented people. the ground lost. establishment of a permanent cultural centre. • The Commission recommends • Reiterating its previous that the Minister for Jobs and recommendations, the

Section 10: Health and Social Services

• The Commission recommends Ireland are professionalised and health issues among minority that the State advance the regulated, including through ethnic communities, the barriers introduction of an ethnic identifier the development of a system of they face in accessing services, across the health sector and accreditation and training. and the public health challenges of the systematic publication of addressing the social determinants disaggregated data, with the • The Commission recommends of mental ill-health are fully specific aim of supporting policy the development of additional reflected in forthcoming legislative reform and the planning and public health, health promotion, and policy developments. delivery of appropriate services and outreach services for minority for ethnic minorities. ethnic groups, including to • The Commission recommends address the specific health needs that mental health services • The Commission recommends of Travellers and the broader are available to residents in all that the State introduce measures social determinants that lead to direct provision and emergency to progress and evaluate the health inequalities. accommodation centres and that delivery of cultural competency increased expertise is developed training across frontline health • The Commission recommends within community-based services and to ensure that the development of a national services concerning appropriate the workforce fully reflects the primary healthcare project for interventions and support for diversity of the population. Roma. people in the international protection process. • The Commission recommends • The Commission recommends that interpreting services in that the prevalence of mental

158 IHREC CERD Submission | October 2019 • As recommended by the • The Commission recommends their overrepresentation in Committee on the Rights of that the review of the Child Care childcare proceedings, and the Child, the Commission Act 1991 and the new national the need for alternative care recommends the further standards for children’s social placements appropriate to their development of mental health services take adequate account of individual circumstances and advocacy and information services the issues experienced by minority needs. for children, including children from ethnic families in engaging with minority ethnic communities. welfare and protection services,

Section 11: Housing

• The Commission recommends increasingly diverse nature of the • The Commission recommends that Circular 41/2012 on ‘access population in need of social housing that the State take further specific, to social housing supports for and homelessness supports, and targeted measures to address non-Irish nationals’ be reviewed to address the discrimination and barriers to access to housing for and amended to ensure that inequalities faced by minority the Roma community. EEA nationals are not unlawfully ethnic groups. discriminated against in accessing • The Commission recommends social housing supports. • The Commission recommends the development of Roma-specific, that the State prioritise time-bound actions in the area of • The Commission recommends the implementation of the housing for inclusion in the National that the State adopt a policy recommendations of the Traveller and Roma Inclusion approach that primarily views Independent Expert Review of Strategy 2017–2021. access to housing as a fundamental Traveller Accommodation and human right, rather than as a European Commission against • The Commission recommends matter for the private market. This Racism and Intolerance. that the State progress the approach should include a new introduction of an ethnic identifier commitment to social housing and • The Commission recommends across the housing sector and public housing provision. the introduction of dissuasive the systematic publication of sanctions for local authorities disaggregated administrative data, • The Commission recommends who fail to provide Traveller- including specific data on the Roma a review of the Housing Acts and specific and culturally appropriate community. associated policy instruments accommodation in areas where to reflect the changing and there is a stated need.

Section 12: Gender-based Violence

• The Commission recommends • The Commission recommends • The Commission recommends that the State adopt measures that the new Sexual Violence that specialised services for to encourage and facilitate the Survey should facilitate the victims of violence must be widely reporting of crimes, including reporting of robust and sufficient accessible and accommodating special measures for women and data on the experiences of women of the diverse needs of minority girls from minority ethnic groups. and girls from minority ethnic ethnic women. groups in a timely manner.

IHREC CERD Submission | October 2019 159 • The Commission recommends to ensure that the needs of minority ethnic communities, that the Immigration Guidelines victims of violence are identified including women and girls in the for Victims of Domestic Violence and addressed throughout the international protection system. are placed on a legislative basis, asylum procedure, including by to ensure that victims, whose introducing gender-sensitive • The Commission recommends residence status depends on the guidelines, reception procedures, that the State work in perpetrator of domestic violence, and support services. collaboration with communities can access autonomous residence affected by Female Genital permits irrespective of the • The Commission recommends Mutilation to raise awareness duration of the relationship. that the complex and about and support access to the intersectional issues relating to existing specialist services and • The Commission recommends violence against minority ethnic to develop additional regional the introduction of a clear legal women and girls are included services and peer-led support. framework to provide pathways in the pre-service and ongoing to lawful residence for victims training of An Garda Síochána. • The Commission recommends of domestic violence who are that the State build on the work undocumented. • The Commission recommends carried out by civil society to that targeted public information advance the publication of a • The Commission recommends and education measures on comprehensive national action that the State take all necessary violence against women and plan on Female Genital Mutilation. legislative and other measures girls should be developed for

Section 13: International Protection

• The Commission is • The Commission calls on the • The Commission is of the view concerned that almost four State to opt in to the Asylum that the policy of direct provision years after the passing of the Procedures Directive (recast) and does not adequately protect the International Protection Act introduce measures to support rights of international protection 2015, excessive waiting times for people with disabilities and other applicants. In the long term, the the processing of international special procedural needs in their Commission recommends the protection applications persist, application for international complete phasing-out of direct leading to dependency and protection. provision. disempowerment amongst those seeking protection and impeding • The Commission is of the view • The Commission is of the view prospects of integration. that immigration detention should that emergency accommodation not be punitive and should only be does not adequately protect the • The Commission recommends used as an individual measure that rights of international protection that the State ensure effective is exceptional, proportionate, and applicants and that its use should legal advice for international necessary. cease as soon as possible. protection applicants at an early stage through the Civil Legal • The Commission recommends • The Commission recommends Aid Board, to support them in that the operation of immigration that where the use of emergency progressing their application. detention should be regularly accommodation is unavoidable, evaluated. international standards and the

160 IHREC CERD Submission | October 2019 Public Sector Equality and Human to their gender and sexual statutory framework for family Rights Duty, must be considered orientation. The State should also reunification. in the request for tenders and that report publicly on the operation of such accommodation must only be the process and the actions taken. • The Commission recommends used for the shortest possible time. that an independent appeals • The Commission is of the view procedure for family reunification • While the current model of direct that the policy of dispersal does not applications be added to the provision remains in place, the protect the rights of international existing appeals mechanisms of Commission calls upon the State protection applicants and that its the State to protect the right to an to develop a robust independent impact in practice amounts to a effective remedy. inspection mechanism to ensure failure on the part of the State to that the new national standards prevent racial segregation, contrary • The Commission recommends for accommodation offered to to Article 3 of CERD. that the State clarify its plans to people in the protection process improve data collection and analysis are fully implemented, including • The Commission recommends on unaccompanied and separated in emergency accommodation that the State move away from the children to develop appropriate centres. current for-profit model of direct policy responses. provision. • The Commission recommends • The Commission recommends that all individuals receive an initial • Should the State continue the publication of guidance vulnerability assessment within a to outsource the provision to support the submission reasonable time after an application of reception conditions for of international protection for international protection is international protection applicants, applications for unaccompanied made and before their placement whether to for-profit or not-for- and separated children by the Child in a direct provision or emergency profit non-State actors, all such and Family Agency. accommodation centre. outsourcing should be subject to procurement processes that • The Commission recommends • The Commission recommends are underpinned by international that the Equity of Care principle is that the State continue to use the human rights standards and the consistently applied in respect to vulnerability assessment process Public Sector Equality and Human aftercare planning and supports and on an ongoing basis to proactively Rights Duty. that independent representatives deliver appropriate services to are appointed to all unaccompanied applicants, including reasonable • The Commission recommends and separated children. accommodation for people with that the State clarify how it intends disabilities and supports sensitive to address the deficiencies in its

Section 14: Human Trafficking

• The Commission recommends • The Commission recommends as possible and cover police co- that the State should address the that any future arrangement with operation, as well as any data- existing obstacles preventing the the United Kingdom following its sharing arrangements, including in prosecution of perpetrators of departure from the European Union the area of human trafficking. trafficking. should aim to be as comprehensive

IHREC CERD Submission | October 2019 161 • The Commission recommends • The Commission recommends contribution from any proceeds that the victim identification that the State adopt legislation to confiscated from perpetrators of process be placed on a statutory ensure that all potential victims of trafficking. footing, which should include a clear trafficking have a statutory right to statement regarding the rights specialised services and assistance, • The Commission recommends and entitlements that flow from a irrespective of their involvement that the State provide information positive decision regardless of the with law enforcement agencies. on its plans to support sustained victim’s nationality or immigration and improved data collection status. Fair procedures must be • The Commission recommends and reporting to ensure a afforded to the potential victim that the State assess whether comprehensive picture of the throughout the process. its current provision of funding is human trafficking situation in sufficient to ensure the availability Ireland. • The Commission recommends of long-term social inclusion that the State provide further measures and supports for victims • The Commission is of the view information on its review of the of trafficking. that an independent, dedicated formal victim identification process, national rapporteur should be particularly the timelines for when • The Commission recommends appointed in line with international the new identification process will that the State take measures to best practice to monitor be in place, and what measures are ensure that victims of trafficking developments on trafficking and to be applied in the interim. can access compensation, including to support the State’s compliance through provision of the necessary with human rights standards. • The Commission recommends information and supports. that the State put the non- • The Commission recommends punishment principle on a statutory • The Commission recommends that victims of trafficking are footing to ensure that victims are that the State examine the accommodated in appropriate not prosecuted for crimes that they possibility of establishing a facilities that ensure access to the were compelled to carry out as a dedicated compensation fund for necessary support services. result of being trafficked. victims of trafficking, including a

Section 15: Access to Justice

• The Commission recommends • The Commission recommends Síochána, the Office of the that racial profiling is dealt with the discontinuation of passport Director of Public Prosecutions, appropriately, including through and identity checks by An Garda the Prison Service, and detention legislative measures. Síochána and other Irish officials centres. at the border between Ireland and • The Commission recommends Northern Ireland based on racial • The Commission recommends that, through the Sentencing profiling. that the Judicial Studies Guidelines and Information Committee support the Committee or another • The Commission recommends continuing education of the mechanism, the Courts Service that human rights and equality judiciary on human rights, equality, collects data on sentencing that is standards are central to the and cultural competence. disaggregated on the grounds of initial and continuous training ethnicity. of all criminal justice personnel, • The Commission recommends including staff within An Garda that An Garda Síochána and other

162 IHREC CERD Submission | October 2019 public bodies in the criminal justice services are made available in a of a system of accreditation and sector should set specific targets wider range of areas. training. for diversity in their recruitment procedures. • The Commission recommends • The Commission recommends that the State support the sustained that the State reconsider the • The Commission recommends provision of specialist legal services Law Reform Commission’s that the State review the operation to minority ethnic communities. recommendation on the of section 11 of the Criminal introduction of a multi-party Law (Sexual Offences) Act 1993 • Recalling its recommendation litigation mechanism to provide for concerning the interpretation of in section 10 of this submission, collective redress. ‘brothel keeping’. the Commission is of the view that interpreting services for legal and • The Commission recommends • The Commission recommends administrative proceedings should that the State address the that the remit of the Legal Aid Board be professionalised and regulated, implications of Practice Direction 81 be reviewed and that civil legal aid including through the development on migrants’ access to justice.

Section 16: Human Rights Leadership

• The Commission recommends Implementation Group should restitution and compensation for that the State build on its examine the implementation victims of displacement and other ratification of the Istanbul of recommendations by UN human rights abuses. Convention by adopting a strong human rights bodies on business leadership role on the international and human rights and the • The Commission further stage in promoting the protection implementation of the State’s recommends that, in line with of women’s rights. obligations under the Public Sector its actions on ‘Corporate Equality and Human Rights Duty. Responsibility’ and ‘Access to • The Commission recommends Remedy’ in the National Plan on that the State detail its plans and • The Commission recommends Business and Human Rights, the arrangements to work with other that the State ratify the State engage with companies governments to ensure ongoing International Convention on the domiciled in Ireland with links to the rescue and humanitarian missions Protection of the Rights of All Cerrejón mine regarding human in the Mediterranean. Migrant Workers and Members rights abuses occurring there. of their Families and take the • The Commission recommends necessary measures to ensure its that the State should consider full incorporation at a domestic introducing human rights level. due diligence as a mandatory requirement with legislative • The Commission recommends underpinning, including in that the State continue to raise the context of government concerns about human rights procurement. abuses in the Cerrejón mine with the government of Colombia and • The Commission lend its support to the initiation recommends that the of an independent inquiry into Business and Human Rights the operation of the mine, and

IHREC CERD Submission | October 2019 163

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